Common use of Statements Clause in Contracts

Statements. Tenant shall furnish or cause to be furnished the following to Landlord: (i) As to each SPE Tenant: (a) within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes); (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statement

Appears in 2 contracts

Sources: Lease (Caesars Entertainment, Inc.), Lease (Vici Properties Inc.)

Statements. Tenant (a) On each Distribution Date, based on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause prepare and post on its website at www.ctslink.com, a statement (the "Distribution Date Statement") as to be furnished the following to Landlord▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ns made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Certificates allocable to principal, separately identified and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, distribution made on such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, Distribution Date to the extent required as an Additional Fee Mortgagee RequirementHolders of the Class P Certificates allocable to Prepayment Charges, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Originator Prepayment Charge Payment Amounts and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC:the Holders of each Class of Certificates allocable to interest or Class CE Distributable Amount, separately identified; (Aiii) annual financial statements audited the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Targeted Overcollateralization Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by CEOC’s Accountant the Master Servicer during the related Collection Period; (v) the aggregate amount of Advances for the related Collection Period, cumulative unreimbursed Advances and Servicing Advances and cumulative Nonrecoverable Advances; (vi) the Pool Balance, at the close of business at the end of the related Collection Period; (vii) the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans (a) 30 to 59 days past due on a contractual basis, (b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in accordance bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) with GAAP covering respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Fiscal Year Mortgage Loan, the unpaid Principal Balance of the REO Property as of the close of business on the last Business Day of such calendar month and containing statement the Principal Balance of profit such Mortgage Loan as of the date it became an REO Property; (x) the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and losscumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) separately stated for each Loan Group, a balance sheetthe aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) separately stated for each Loan Group, the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiii) the Certificate Principal Balance of each Class of Certificates, after giving effect to the distributions, and statement allocations of cash flows Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xiv) the Accrued Certificate Interest in respect of each Class of Certificates for CEOCsuch Distribution Date and any related Cap Carryover Amounts, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results respective portions thereof, if any, remaining unpaid following the distributions made in respect of their operations such Certificates on such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Master Servicer pursuant to Section 3.23; (xvi) the amount of the Trustee Fee paid; (xvii) the Cap Carryover Amounts distributed on such Distribution Date, the amounts remaining after giving effect to distributions thereof on such Distribution Date and cash flow the amount of all Cap Carryover Amounts covered by withdrawals from the Reserve Account on such Distribution Date; (xviii) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xix) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xx) the Available Funds; (xxi) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxii) the periods indicated information contained in conformity with GAAP the Liquidation Report for such Distribution Date; (xxiii) the aggregate Principal Balance of Mortgage Loans purchased by the Master Servicer, the Originator or the Seller during the related Prepayment Period and indicating the section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; (Bxxiv) that the audit aggregate Principal Balance of the Mortgage Loans repurchased by such Accountant the Master Servicer during the related Prepayment Period in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadlineSection 3.16; (Bxxv) quarterly unaudited financial statements, consisting the amount of the Credit Risk Manager Fee paid; (xxvi) the Mortgage Loan identifying number of each Mortgage Loan with a Prepayment Charge that was the subject of a statement Principal Prepayment in full during the related Collection Period, the Prepayment Charge listed on each related Mortgage Note and the Prepayment Charge collected, the Servicer Prepayment Charge Payment Amount paid by the Master Servicer or the Originator Prepayment Charge Payment Amount paid by the Originator with respect to each such Mortgage Loan; (xxvii) the amount of profit and loss, a balance sheetany claims made, and statement of cash flows for CEOCany claims rejected, together with a certificate, executed by under the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying Mortgage Insurance Policy during the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments related Collection Period and the absence amount of footnotes), all of which shall be provided any claims previously paid that are reimbursed to the Insurer (x) within sixty (60) days after the end of each net of the first three (3aggregate amount of Premium paid to the Insurer hereunder) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadlinepursuant to Section 3.01; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (ixxviii) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT amount of Subsequent Recoveries received during the Term of this Lease, (ii) related Prepayment Period. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each Mortgage Loans provided by the Master Servicer. In the case of clause information furnished pursuant to subclauses (i), (ii) and (iii)xiii) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant the amounts shall be expressed in accordance with GAAP covering such Fiscal Year and containing statement a separate section of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope a dollar amount for each Class for each $1,000 original dollar amount as of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and Cut-off Date. (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end Within a reasonable period of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of necessary to provide to such Person a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and statement containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses set forth in subclauses (i), (ii) or (iii) of this parenthetical), (xiv) and (xvii) above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Trustee shall be deemed to have been satisfied to the extent reasonably requested that substantially comparable information shall be prepared and furnished by such Fee Mortgagee the Trustee to Certificateholders pursuant to any requirements of the Code as are in order force from time to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; andtime. (Bc) reviewOn each Distribution Date, re-review and, the Trustee shall forward to the Class R Certificateholder a copy of the reports forwarded to the Regular Certificateholders in respect of such Distribution Date with such other information as the Trustee deems necessary or appropriate. Such obligation of the Trustee shall be deemed to have been satisfied to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any substantially comparable information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared and furnished to Class R Certificateholder by the Trustee pursuant to any requirements of the Code as from time to time in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 2 contracts

Sources: Pooling and Servicing Agreement (Asset Backed Funding Corp. ABFC Asset Backed Certificates Series 2004-Opt3), Pooling and Servicing Agreement (Abfc Asset-Backed Certificates Series 2004-Opt2)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause (i) prepare and forward by mail to be furnished each Holder of the following Regular Certificates and (ii) make available on its website at www.usbank.com/abs for access by e▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ Regular Certificates, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to the Holders of each SPE Tenant: Class of Certificates allocable to principal or reduction of Notional Amount, separately identified; (ii) the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to interest or Class X Distributable Amount, separately identified; (iii) the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Overcollateralization Target Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) [reserved]; (v) the aggregate amount of Advances for the related Collection Period; (vi) the Pool Balance at the close of business at the end of the related Collection Period; (vii) the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) the number and aggregate unpaid Principal Balance of Mortgage Loans (a) within ninety 30 to 59 days past due on a contractual basis, (90b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) with respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Mortgage Loan, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Prepayment Charges collected (including amounts deposited in connection with the full or partial waiver of such Prepayment Charges pursuant to Section 3.01) during the related Collection Period and the amounts thereof allocable to the Class N Certificates and the Class X Certificates; (xiii) the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiv) the Certificate Principal Balance or Notional Amount, as applicable, of each Class of Certificates, after giving effect to the distributions, and allocations of Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xv) the Accrued Certificate Interest in respect of each Class of Offered Certificates, the Class B-3 Certificates and the Class B-4 Certificates for such Distribution Date, and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date and the amount of any LIBOR Carryover Amounts; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23; (xvii) the amount of the Trustee Fee paid; (xviii) the LIBOR Carryover Amounts distributed on such Distribution Date and the amounts remaining after giving effect to distributions thereof on such Distribution Date; (xix) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xx) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xxi) the Available Funds; (xxii) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxiii) the Liquidation Report for such Distribution Date; (xxiv) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer or Seller during the related Collection Period and indicating the Section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; and (xxv) the aggregate Principal Balance of the Mortgage Loans repurchased by the Servicer (or an affiliate) during the related Collection Period in connection with Section 3.16. 95 The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Mortgage Loans provided by the Servicer. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within a reasonable period of time after the end of each Fiscal Year (commencing with calendar year, the Fiscal Year ending December 31Trustee shall furnish to each Person who at any time during the calendar year was a Certificateholder of a Regular Certificate, 2017)if requested in writing by such Person, but if Guarantor such information as is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering reasonably necessary to provide to such Fiscal Year and containing Person a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after containing the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, information set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes); (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause subclauses (i), (ii), (xv) and (iii)xviii) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering aggregated for such Fiscal Year and containing statement calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which Trustee shall be unqualified as deemed to scope of audit of ERI and its Subsidiaries and shall provide in substance have been satisfied to the extent that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which substantially comparable information shall be limited prepared and furnished by the Trustee to balance sheetsCertificateholders pursuant to any requirements of the Code as are in force from time to time. (c) On each Distribution Date, income statements, and statements the Trustee shall forward to the Residual Certificateholders a copy of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or the reports forwarded to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including Regular Certificateholders in respect of Landlord REIT’s qualification such Distribution Date with such other information as a REIT) and (iii) any other federal, state the Trustee deems necessary or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect appropriate. Such obligation of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished to Landlord no later than fifty-five (55) days following Residual Certificateholders by the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 2 contracts

Sources: Pooling and Servicing Agreement (C-Bass MTG Ln as Bk Cert Ser 2004-Cb4), Pooling and Servicing Agreement (C-Bass MTG Ln as Bk Cert Ser 2004-Cb4)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Swap Provider, the Servicer and the Rating Agencies, a statement as to Landlord:the distributions made on such Distribution Date (the “Monthly Statement”): (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossNet Monthly Excess Cashflow, a balance sheetthe Overcollateralized Amount, and statement of cash flows for ERIthe Overcollateralization Release Amount, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared any fees and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect expenses of the periodic determination of the Variable Rent hereunder)Trust accrued and paid on such Distribution Date and to whom such fees and expenses were paid; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to Advances for the related Due Period (including the general purpose of such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming AuthoritiesAdvances); (vi) the aggregate amount of interest and scheduled principal received or advanced by the Servicer with respect to the related Due Period; (vii) with respect to each Loan Group, the related group balance at the Close of Business at the end of the related Due Period; (viii) the number, aggregate Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (ix) the number and aggregate unpaid principal balance of Mortgage Loans (except those Mortgage Loans that are liquidated as of the end of the related Prepayment Period) that were (as determined using the OTS method) (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (x) the Delinquency Percentage; (xi) the total number and cumulative principal balance of all Liquidated Mortgage Loans as of the Close of Business of the last day of the preceding Prepayment Period, prior to the reduction of each principal balance to zero; (xii) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xiii) the aggregate amount of Principal Prepayments in full, the aggregate amount of Principal Prepayments in part and Net Liquidation Proceeds made during the related Prepayment Period; (xiv) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xv) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xvi) the Certificate Principal Balance of each Class of Class A Certificates, each class of Mezzanine Certificates and the Class C Certificates, before and after giving effect to the distributions made on such Distribution Date; (xvii) the Monthly Interest Distributable Amount in respect of each Class of Class A Certificates, each class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date; (xviii) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.26; (xix) the Senior Credit Enhancement Percentage for such Distribution Date; (xx) the Net WAC Rate Carryover Amount for each class of Class A Certificates and each class of Mezzanine Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xxi) the amount of any Net Swap Payments or Swap Termination Payments (a) due from the Trust and (b) due from the Swap Provider; (xxii) whether the Stepdown Date or a Trigger Event is in effect; (xxiii) the total cashflows received (including amounts received from the Supplemental Interest Trust Trustee under the Interest Rate Swap Agreement); (xxiv) the respective Pass-Through Rates applicable to each Class of Class A and Mezzanine Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Class A Certificates and Mezzanine Certificates for the immediately succeeding Distribution Date; (xxv) the amount on deposit Net WAC Rate Carryover Reserve Account; and (xxvi) the applicable Record Date, Accrual Period and Determination Date for calculating distributions for such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the NIMS Insurer, the Swap Provider and the Rating Agencies via the Trustee’s internet website. The Trustee’s internet website shall initially be located at “▇▇▇.▇▇▇▇▇▇▇.▇▇▇”. Assistance in using the website can be obtained by calling the Trustee’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access the Trustee’s internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the distribution date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. In addition, the Trustee will report on Form 10-D any material breaches of representations and warranties regarding the Mortgage Loans to the extent known to the Trustee and if applicable, material modifications, extensions or waivers to Mortgage Loan terms, fees, penalties or payments during the preceding calendar month or that have become material over time. For all purposes of this Agreement, with respect to any Mortgage Loan, delinquencies shall be determined by the Trustee from information provided by the Servicer and reported by the Trustee based on the OTS methodology for determining delinquencies on mortgage loans similar to the Mortgage Loans. By way of example, a Mortgage Loan would be Delinquent with respect to a Monthly Payment due on a Due Date if such Monthly Payment is not made by the close of business on the Mortgage Loan's next succeeding Due Date, and a Mortgage Loan would be more than 30-days Delinquent with respect to such Monthly Payment if such Monthly Payment were not made by the close of business on the Mortgage Loan’s second succeeding Due Date (the “OTS Method”). The Servicer hereby represents and warrants to the Depositor that it is not subject to any delinquency recognition policy established by its safety and soundness regulators. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to the NIMS Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the NIMS Insurer and the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items Trustee shall deliver to the NIMS Insurer and each Person who at any time during the calendar year was a Residual Certificateholder, if requested in writing by such Person, such information as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision requirements of this Lease;the Code as from time to time in force. (xviiie) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 For each Distribution Date, through and including the Distribution Date in December 2007, the Trustee shall calculate the Significance Percentage of the MTSA by TenantInterest Rate Swap Agreement. If on any such Distribution Date, ERI the Significance Percentage is equal to or any direct or indirect subsidiary of ERI to greater than 9%, the extent relevant to Trustee shall promptly notify the calculation of Net Revenues hereunderDepositor and the Depositor, in each case within fifteen (15) days on behalf of the receipt thereof; (xx) On an annual basisTrustee, a detailed reconciliation of shall obtain the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed delivered by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided the Swap Provider pursuant to Section 23.1(b)(iii) the terms of the Interest Rate Swap Agreement. If, on any succeeding Distribution Date through and including the Distribution Date in December 2007, the Significance Percentage is equal to or greater than 10%, the Trustee shall be prepared in compliance with applicable federal securities lawspromptly notify the Depositor and the Depositor shall, including Regulation S-X (and for any prior periods required thereunder)within 5 Business Days of such Distribution Date, if and deliver to the extent Trustee the financial information provided to it by the Swap Provider for inclusion in the Form 10-D relating to such compliance with federal securities lawsDistribution Date. If on any Distribution Date after December 2007, including Regulation S-X (and the Significance Percentage is greater than 10%, the Trustee shall include the Significance Percentage on the statement to Certificateholders for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementthe related Distribution Date.

Appears in 2 contracts

Sources: Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2007-4), Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2007-3)

Statements. Tenant (a) Not later than 1:00 p.m., New York time, on the fifth Business Day prior to each Distribution Date, the Servicer shall furnish deliver to the Trustee by electronic means a computer file containing the loan level information necessary to permit the Trustee to calculate the information required by clauses (i) through (xxvi) below as of the end of the preceding Prepayment Period or cause Due Period, as applicable, and such other information as the Trustee shall reasonably require, and the Seller hereby agrees to provide the Trustee and the Servicer with an amended Prepayment Charge Schedule, if required, at such time. Not later than each Distribution Date the Trustee shall prepare a statement (the “Remittance Report”) containing the information set forth below with respect to such Distribution Date, which information shall be based solely upon the loan level information furnished by the following to LandlordServicer upon which the Trustee shall conclusively rely without independent verification thereof: (i) As to each SPE Tenant: (a) within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments Available Funds and the absence of footnotes)Certificate Rate for each Class for the related Distribution Date; (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each aggregate amount of the first three (3) Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) Certificates on such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowDistribution Date; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, distribution set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to paragraph (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including above in respect of Landlord REIT’s qualification as a REIT) interest and (iii) the amount thereof in respect of any other federalClass Interest Carryover Shortfall, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowand the amount of any Class Interest Carryover Shortfall remaining; (iv) As soon as it is prepared the amount of the distribution set forth in paragraph (i) above in respect of principal and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof amount thereof in respect of the periodic determination of the Variable Rent hereunder)Class Principal Carryover Shortfall, and any remaining Class Principal Carryover Shortfall; (v) Prompt Notice to Landlord the amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)Excess Interest paid as principal; (vi) the Servicing Fee and the Trustee Fee (including the separate amounts payable to each of the Trustee and its Custodian); (vii) the Pool Balance as of the close of business on the last day of the preceding Due Period; (viii) the Class Principal Balance of each Class of Certificates after giving effect to payments allocated to principal above; (ix) the Overcollateralization Amount and the Required Overcollateralization Amount as of the close of business on the Distribution Date, after giving effect to distributions of principal on such Distribution Date; (x) whether a Cumulative Loss Event or a Delinquency Event has occurred and is continuing and the calculation thereof; (xi) the aggregate amount of Principal Prepayments received during the related Prepayment Period; (xii) the amount of all Curtailments that were received during the Due Period; (xiii) the principal portion of all Monthly Payments received during the Due Period; (xiv) the interest portion of all Monthly Payments received on the Mortgage Loans during the Due Period; (xv) the amount of the Monthly Advances and the Compensating Interest payment to be made on the Determination Date; (xvi) the amount to be distributed to the Class P Certificates, Class BIO and Class R Certificateholders, respectively for the Distribution Date; (xvii) the weighted average remaining term to maturity of the Mortgage Loans and the weighted average Loan Rate as of the first day of the related Due Period; (xviii) the amount of all payments or reimbursements to the Servicer pursuant to Sections 3.03(ii) and (vi) (as reported by the Servicer); (xix) the number of Mortgage Loans outstanding at the beginning and at the end of the related Due Period; (xx) the amount of Liquidation Loan Losses experienced during the preceding Due Period and the Cumulative Net Losses as a percentage of the Cut-Off Date Pool Balance; (xxi) as of the end of the preceding calendar month, the number and Principal Balance of Mortgage Loans which are 30-59 days delinquent; the number and Principal Balance of Mortgage Loans which are 60-89 days delinquent; the number and Principal Balance of Mortgage Loans which are 90 or more days delinquent (including the number and Principal Balance of Mortgage Loans which are in foreclosure; the number and Principal Balance of Mortgage Loans in bankruptcy; and the number and Principal Balance of Mortgage Loans which are REO Property, each separately set forth); (xxii) for the Distribution Date in April 2004 and May 2004, the amount, if any, on deposit in the First Payment Loan Account; (xxiii) the number and aggregate Principal Balance of Mortgage Loans, other than Mortgage Loans in default or imminent default, that were modified by the Servicer during the related Due Period (as reported by the Servicer); (xxiv) the amount of Net Rate Cap Carryover distributed to each Class of Offered Certificates (other than the Class A-IO Certificates), stating separately any amounts received from the cap provider with respect to the Interest Rate Cap Agreements, and the amount of Net Rate Cap Carryover remaining for each such Class; (xxv) the amount on deposit in the Net Rate Cap Fund, and the amounts of each deposit and withdrawal from such Account; and (xxvi) for each Pre-Funding Distribution Date, the remaining amount in the Pre-Funding Account. The Trustee shall make available such report to the Servicer, the Seller, the Certificateholders, the Rating Agencies, Bloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) and Intex Solutions (at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the Distribution Date. The Trustee may fully rely upon and shall have no liability with respect to information provided by the Servicer. In the case of information furnished pursuant to subclauses (ii), (iii), (iv) and (vi) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1 original dollar amount as of the related Cut-Off Date. The Trustee will make the Remittance Report (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the parties to this Agreement via the Trustee’s internet website. The Trustee’s internet website shall initially be located at “▇▇▇.▇▇▇▇▇▇▇.▇▇▇”. Assistance in using the website can be obtained by calling the Trustee’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution options are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way Remittance Reports are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access the Trustee’s internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Remittance Report and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party hereto). (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall furnish to each Person who at any time during the calendar year was a Holder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (iii) and (iv) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the Class R Certificateholders in the same manner as the Remittance Report is made available to all Certificateholders a copy of the occurrence of a Tenant Event of Default (or reports forwarded to the Holders of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificates in respect of any Facility), such Distribution Date and a written notice statement setting forth the amounts actually distributed to Landlord regarding the same, which notice shall include a detailed description of Class R Certificateholders on such Distribution Date together with such other information as the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthClass R Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Class R Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared by the Fiscal Year Tax Matters Persons and furnished to which such operating budget relates; (xiv) Within five (5) Business Days after request (Certificateholders by the Trustee or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Tax Matters Person pursuant to any other provision requirements of the Code as from time to time in force. (e) The Servicer and the Trustee shall furnish to the Depositor, the Seller and each Certificateholder (if requested in writing), during the term of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by TenantAgreement, ERI such periodic, special or any direct other reports or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunderinformation, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basiswhether or not provided for herein, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) aboveas shall be necessary, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information reasonable or appropriate with respect to the Leased Property Certificateholder or any portion thereofotherwise with respect to the purposes of this Agreement, Tenant all such reports or its Affiliates information to be provided by and in accordance with such applicable instructions and directions (excluding if requested in writing) as the Certificateholder may reasonably require; provided that the Servicer and the Trustee shall be entitled to be reimbursed by such Certificateholder for their respective fees and actual expenses associated with providing such reports, if such reports are not generally produced in the ordinary course of their respective businesses or readily obtainable. (if) any material non-public information, (ii) any Competitively Sensitive InformationReports and computer diskettes or files furnished by the Servicer pursuant to this Agreement shall be deemed confidential and of a proprietary nature, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) copied or (iii) of this parenthetical), distributed except to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, law or to the extent accurate, approve (and Rating Agencies. No Person entitled to receive copies of such reports or diskettes or files or lists of Certificateholders shall use the extent inaccurate, identify information therein for the same with particularity) portions purpose of any Disclosure Document (soliciting the customers of the Seller or for any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared purpose except as set forth in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementthis Agreement.

Appears in 2 contracts

Sources: Pooling and Servicing Agreement (Renaissance Mort Acc Corp Renaissance Home Eq Ln Tr 2004 1), Pooling and Servicing Agreement (Delta Financial Corp)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the NIMS Insurer, the Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Net Monthly Excess Cashflow, a balance sheetthe Overcollateralized Amount, and statement of cash flows for ERIthe Overcollateralization Release Amount, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount and the Senior Credit Enhancement Percentage as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared the fees and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect expenses of the periodic determination of the Variable Rent hereunder)Trust Fund accrued and paid on such Distribution Date and to whom such fees and expenses were paid; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to Advances for the related Due Period (including the general purpose of such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming AuthoritiesAdvances); (vi) the aggregate Principal Balance of the Mortgage Loans and any REO Properties as of the end of the relted Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties, as well as the aggregate principal balance of Mortgage Loans that were liquidated and the net proceeds resulting therefrom; (ix) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the calendar month preceding the related Distribution Date; (x) the aggregate amount of Principal Prepayments made during the related Prepayment Period, separately indicating Principal Prepayments in full and Principal Prepayments in part; (xi) the Delinquency Percentage; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses and the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the cumulative amount of Subsequent Recoveries received since the Closing Date; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account or the Distribution Account for such Distribution Date; (xiv) the Certificate Principal Balance of each Class of Class A Certificates, Mezzanine Certificates and the Class C Certificates, before and after giving effect to the distributions, and allocations of Realized Losses, made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of each Class of Class A Certificates, Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to each Class of Class A Certificates, Mezzanine Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.24; (xvii) the Net WAC Rate Carryover Amount for each Class of Class A and Mezzanine Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xviii) whether the Stepdown Date or a Trigger Event has occurred; (xix) the total cashflows received and the general sources thereof; (xx) the respective Pass-Through Rates applicable to each Class of Class A Certificates, Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Class A and Mezzanine Certificates for the immediately succeeding Distribution Date; (xxi) the amount of any Net Swap Payments or Swap Termination Payments; and (xxii) the applicable Record Dates, Accrual Periods and Determination Dates for calculating distributions for such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the NIMS Insurer, the Credit Risk Manager and the Rating Agencies via the Trustee’s internet website. The Trustee’s internet website shall initially be located at “▇▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/invr”. Assistance in using the website can be obtained by calling the Trustee’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee’s internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to the NIMS Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the NIMS Insurer and the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) a rent roll for the subject monthNIMS Insurer, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating incomeupon request, and other each Person who at any time during the calendar year was a Residual Certificateholder, if requested in writing by such Person, such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 2 contracts

Sources: Pooling and Servicing Agreement (Soundview Home Loan Trust 2006-Opt2), Pooling and Servicing Agreement (Soundview Home Loan Trust 2006-Opt1)

Statements. Tenant shall furnish or cause to be furnished the following to Landlord: (i) As to each SPE Tenant: (a) within ninety (90) days after On each Distribution Date, the end of Securities Administrator shall make available to the Trustee, each Fiscal Year (commencing with Certificateholder, the Fiscal Year ending December 31Yield Maintenance Provider, 2017)the Seller, but if Guarantor is not a reporting company under any NIMS Insurer, the Exchange ActMaster Servicer and each Rating Agency, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit based, as applicable, on loan-level information obtained from the Master Servicer, the Basis Risk Cap Provider and lossthe Servicers (the “Distribution Date Statement”) as to the distributions to be made or made, a balance sheetas applicable, and a statement of cash flows on such Distribution Date. Information in the Distribution Date Statement relating to or based on amounts available in the Yield Maintenance Account shall be based on information provided by the Yield Maintenance Provider regarding any Yield Maintenance Distributable Amounts required to be paid by the Yield Maintenance Provider for such SPE Tenant; and (b) within sixty (60) days after the end of each of related Distribution Date pursuant to the first three (3) Fiscal Quarters of each Fiscal Year (commencing with Yield Maintenance Agreement. The Distribution Date Statement shall include the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flowsfollowing information, in each case, with respect to such financial statements, Distribution Date: (i) the amount of the distribution made on such Distribution Date to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer Holders of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results each Class of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, Certificates allocable to normal year-end audit adjustments and the absence of footnotes)principal; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting Class of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed Certificates allocable to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowinterest; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below[Reserved]; (iv) As soon as it is prepared the aggregate amount of Servicing Fees, Subservicing Fees, Master Servicing Fees and in no event later than sixty (60) days after Credit Risk Manager Fees for the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)related Due Period; (v) Prompt Notice to Landlord the amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any Advances for each Loan Group and the aggregate amount of which is called a “Proceeding”), known to Tenant, Advances for the result related Due Period and the amount of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)unreimbursed Advances; (vi) the Loan Group Balance for each Loan Group and the Net WAC for each Loan Group at the Close of Business at the end of the related Due Period; (vii) the Pool Balance, the Pool Collateral Balance and the Loan Group Balance for such Distribution Date; (viii) for each Loan Group, the aggregate Principal Balance of the MTA Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (ix) for each Loan Group, the amount of fees, expenses or indemnification amounts paid by the Trust Fund with an identification of the general purpose of such amounts and the party receiving such amounts; (x) for each Loan Group, the number, weighted average remaining term to maturity, weighted average life and weighted average Loan Rate of the related Mortgage Loans as of the related Due Date; (xi) for each Loan Group, the number and aggregate unpaid principal balance of the related Mortgage Loans, (a) 30 to 59 days Delinquent, (b) 60 to 89 days Delinquent, (c) 90 or more days Delinquent, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy, in each case as of the close of business on the last day of the preceding calendar month, using the OTS method; (xii) for each Loan Group, the book value (if available) of any REO Property as of the Close of Business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties in each Loan Group as of the Close of Business of the last day of the preceding Due Period; (xiii) for each Loan Group, the aggregate amount of any Principal Prepayments, net Principal Prepayments or other unscheduled recoveries of principal with respect to each Loan Group made during the related Prepayment Period; (xiv) for each Loan Group, the aggregate amount of Realized Losses incurred during the related Due Period for each Loan Group and the cumulative amount of Realized Losses and the amount of Realized Losses, if any, allocated to each Class of Certificates after giving effect to any distributions made thereon, on such Distribution Date; (xv) the Class Principal Balance of each Class of Certificates and the Apportioned Principal Balances of the Subordinate Certificates after giving effect to any distributions made thereon, on such Distribution Date; (xvi) for each Loan Group, the Monthly Interest Distributable Amount and the Interest Distributable Amount in respect of each related Class of Certificates, for such Distribution Date and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xvii) for each Class, the aggregate amount of any Net Interest Shortfalls and the Unpaid Interest Shortfall Amount for such Distribution Date after giving effect to any distributions made thereon, on such Distribution Date; (xviii) for each Loan Group, the related Available Funds; (xix) for each Loan Group, the Pass-Through Rate and related Adjusted Cap Rate for each Class of Certificates for such Distribution Date; (xx) for each Loan Group, the aggregate Principal Balance of Mortgage Loans purchased hereunder by the Seller during the related Due Period; (xxi) for each Loan Group, the amount of any Principal Deficiency Amounts or Accrued Interest Amounts paid to an Undercollateralized Group or amounts paid pursuant to Section 5.01(f)(i); (xxii) current Recoveries allocable to each Loan Group; (xxiii) cumulative Recoveries allocable to each Loan Group; (xxiv) the amount of any Basis Risk Shortfall, if any, for each Class after giving effect to any distributions made thereon, on such Distribution Date; (xxv) for each Loan Group, the amount of Deferred Interest and Net Deferred Interest, if any, for such Loan Group; (xxvi) the amount of Net Deferred Interest, if any, added to the Class Principal Balance of the Certificates; (xxvii) the amount of any Unpaid Interest Shortfall Amount; (xxviii) the amount of the Group 1 Final Maturity Reserve Amount, the Group 2 Final Maturity Reserve Amount and the Aggregate Final Maturity Reserve Amount deposited in the Final Maturity Reserve Account, and, on the Final Maturity Reserve Termination Date, the amount distributed from the Final Maturity Reserve Account to each Class of Certificates; (xxix) the Overcollateralized Amount for that Distribution Date; (xxx) the Overcollateralization Target Amount for that Distribution Date; (xxxi) the amount remitted by the Administrator to the Securities Administrator pursuant to the Yield Maintenance Allocation Agreement; (xxxii) the payments, if any, made from the Yield Maintenance Account and the amount distributed to the LIBOR Certificates from such payments; (xxxiii) the amount of any Class P Distributable Amount and the amount of any Class ES Distributable Amount; (xxxiv) the amount on deposit in the Prefunding Account in the aggregate and for each Loan Group (including a breakdown of amounts released during the prior calendar month in respect of Aggregate Subsequent Transfer Amounts or amounts included in Available Funds on the Distribution Date in the month following the end of the Prefunding Period); (xxxv) the amount of any payments made by the Basis Risk Cap Provider to the Basis Risk Cap Account pursuant to Section 5.13; and (xxxvi) the aggregate Principal Balance and number of Subsequent Mortgage Loans purchased in the Prefunding Period. The Securities Administrator shall make the Distribution Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the parties to this Agreement via the Securities Administrator’s internet website. The Securities Administrator’s internet website shall initially be located at “w▇▇.▇▇▇▇▇▇▇.▇▇▇.” Assistance in using the website can be obtained by calling the Securities Administrator’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Securities Administrator shall have the right to change the way such reports are distributed in order to make such distribution more convenient and/or more accessible to the parties, and the Securities Administrator shall provide timely and adequate notification to all parties regarding any such change. In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Initial Cut-off Date. In addition to the information listed above, such Distribution Date Statement or the report on Form 10-D for such Distribution Date shall also include any other information required by Item 1121 (§ 229.1121) of Regulation AB. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Securities Administrator shall, upon written request, furnish to any NIMS Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and a Regular Certificate, if requested in writing by such Person or any improvements theretoNIMS Insurer, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person or any NIMS Insurer a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify aggregated for such calendar year or applicable portion thereof during which such Person or any asset additions in accordance with the fixed asset methodology for propco-opco separation used as NIMS Insurer was a Certificateholder and such other customary information which a Certificateholder reasonably requests to prepare its tax returns. Such obligation of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Securities Administrator shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished by the Securities Administrator to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Certificateholders pursuant to any other provision requirements of this Lease;the Code as are in force from time to time. (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xxc) On each Distribution Date, the Securities Administrator shall supply an annual electronic tape to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg Financial Markets, Inc. on a monthly basis, and shall supply an electronic tape to Loan Performance and Intex Solutions in a detailed reconciliation of the financial information being provided format acceptable to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Loan Performance and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described Intex Solutions on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementmonthly basis.

Appears in 2 contracts

Sources: Pooling and Servicing Agreement (HarborView 2007-6), Pooling and Servicing Agreement (HarborView 2007-6)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to the Trust Administrator by the Master Servicer (which in turn shall furnish or cause be based, as applicable, on information provided to be furnished the following Master Servicer by the Servicers) the Trust Administrator shall prepare and make available to Landlordeach Holder of the Regular Certificates, each Servicer, the Credit Risk Manager and the Rating Agencies, a statement as to the distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Net Monthly Excess Cashflow, a balance sheetthe Overcollateralized Amount, and statement of cash flows for ERIthe Overcollateralization Release Amount, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared the fees and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect expenses of the periodic determination of the Variable Rent hereunder)Trust Fund accrued and paid on such Distribution Date and to whom such fees and expenses were paid; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to Advances for the related Due Period (including the general purpose of such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming AuthoritiesAdvances); (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans (not including a Liquidated Mortgage Loan as of the end of the Prepayment Period) that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) using the OTS Method (as described below) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties, as well as the aggregate principal balance of Mortgage Loans that were liquidated and the net proceeds resulting therefrom; (ix) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the calendar month preceding the related Distribution Date; (x) the aggregate amount of Principal Prepayments made during the related Prepayment Period, separately indicating Principal Prepayments in full and Principal Prepayments in part; (xi) the aggregate amount of Realized Losses incurred during the related Prepayment Period, which will include the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the aggregate amount of Realized Losses incurred since the Closing Date, which will include the cumulative amount of Subsequent Recoveries received since the Closing Date; (xii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account or the Distribution Account for such Distribution Date; (xiii) the Certificate Principal Balance of each Class of Floating Rate Certificates and the Class C Certificates, before and after giving effect to the distributions made on such Distribution Date; (xiv) the Monthly Interest Distributable Amount in respect of the Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Floating Rate Certificates for such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the related Servicer pursuant to Section 3.24 or pursuant to the related Servicing Agreement; (xvi) the Credit Enhancement Percentage for such Distribution Date; (xvii) the Net WAC Rate Carryover Amount for the Floating Rate Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xviii) whether the Stepdown Date or a Trigger Event has occurred, the Delinquency Percentage for such Distribution Date and the Realized Loss Percentage for such Distribution Date; (xix) the total cashflows received and the general sources thereof (including amounts received from the Supplemental Interest Trust Trustee under the Interest Rate Swap Agreement, from the Cap Trustee under the Interest Rate Cap Agreement and under the Basis Risk Cap Agreement); (xx) the respective Pass-Through Rates applicable to the Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to the Floating Rate Certificates for the immediately succeeding Distribution Date; (xxi) payments, if any, made under the Basis Risk Cap Agreement and the Interest Rate Cap Agreement and the amount distributed to the Floating Rate Certificates from such payments; (xxii) the amount of any Net Swap Payments or Swap Termination Payments paid to the Swap Provider; and (xxiii) the applicable Record Date, Accrual Period and any other applicable determination dates for calculating distributions for such Distribution Date. The Trust Administrator will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the Master Servicer, the Servicers, the Depositor and the Rating Agencies via the Trust Administrator’s internet website. The Trust Administrator’s internet website shall initially be located at “▇▇▇.▇▇▇▇▇▇▇.▇▇▇”. Assistance in using the website can be obtained by calling the Trust Administrator’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution options are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trust Administrator shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trust Administrator shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access the Trust Administrator’s internet website, the Trust Administrator may require registration and the acceptance of a disclaimer. The Trust Administrator will not be liable for the dissemination of information in accordance with this Agreement. The Trust Administrator shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the distribution date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. For all purposes of this Agreement, with respect to any Mortgage Loan, delinquencies shall be determined by the Trust Administrator from information provided by the Servicer and reported by the Trust Administrator based on the “OTS” methodology for determining delinquencies on mortgage loans similar to the Mortgage Loans. By way of example, a Mortgage Loan would be Delinquent with respect to a Monthly Payment due on a Due Date if such Monthly Payment is not made by the close of business on the Mortgage Loan’s next succeeding Due Date, and a Mortgage Loan would be more than 30-days Delinquent with respect to such Monthly Payment if such Monthly Payment were not made by the close of business on the Mortgage Loan’s second succeeding Due Date. Ocwen hereby represents and warrants to the Depositor that this delinquency recognition policy is not less restrictive than any delinquency recognition policy established by the primary safety and soundness regulator, if any, of Ocwen. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trust Administrator shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trust Administrator shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trust Administrator to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trust Administrator shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trust Administrator deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trust Administrator shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthResidual Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trust Administrator shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trust Administrator pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 2 contracts

Sources: Pooling and Servicing Agreement (Soundview Home Loan Trust 2007-1), Pooling and Servicing Agreement (Soundview Home Loan Trust 2007-1)

Statements. Tenant (a) On each Distribution Date, the Trustee shall furnish prepare and make available to each Holder of the Regular Certificates, the Servicer, the NIMS Insurer, the indenture trustee under the Indenture and the Rating Agencies a statement by electronic medium (as set forth in the penultimate paragraph of this Section 4.03(a)), based on information provided to the Trustee by the Servicer or cause the Swap Counterparty, as to be furnished the following to Landlorddistributions made on such Distribution Date: (i) As to each SPE Tenant: (a) within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respectsrecord dates, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subjectaccrual period, in the case of quarterly financial statements, to normal year-end audit adjustments determination date and the absence of footnotes)distribution date; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement the Holders of profit and losseach Class of Regular Certificates, a balance sheetseparately identified, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as allocable to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated principal and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters distribution made to the Holders of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information Class P Certificates allocable to Prepayment Charges and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowServicer Prepayment Charge Payment Amounts; (iii) As the amount of the distribution made on such Distribution Date to ERI: the Holders of each Class of Regular Certificates (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossother than the Class P Certificates), a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as allocable to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated interest and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAPPass-Through Rates, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowseparately identified; (iv) As soon the Overcollateralized Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency Amount and the Overcollateralization Target Amount as it is prepared of such Distribution Date and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to Excess Overcollateralized Amount for the Mortgage Pool for such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)Distribution Date; (v) Prompt Notice by Loan Group and in the aggregate amount of servicing compensation received by the Servicer with respect to Landlord of any action, proposal the related Due Period and such other customary information as the Trustee deems necessary or investigation by any agency or entitydesirable, or complaint which a Certificateholder reasonably requests, to such agency or entity (any of which is called a “Proceeding”), known enable Certificateholders to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)prepare their tax returns; (vi) the Group I Interest Remittance Amount and the Group II Interest Remittance Amount and the Group I Principal Remittance Amount and the Group II Principal Remittance Amount for such Distribution Date; (vii) the aggregate amount of Advances and Servicing Advances for the related Due Period, the amount of unrecovered Advances and ▇▇▇▇▇▇▇▇▇ Advances (after giving effect to Advances and ▇▇▇▇▇▇▇▇▇ Advances made on the Distribution Date) outstanding and the amount of Nonrecoverable Advances and Servicing Advances for such Distribution Date; (viii) the number and aggregate Stated Principal Balance of the Group I Mortgage Loans, the Group II Mortgage Loans and all Mortgage Loans at the Close of Business at the end of the related Due Period and at the beginning of the related Due Period; (ix) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (x) by Loan Group and in the aggregate, the number and aggregate unpaid principal balance of Mortgage Loans (a) delinquent 30‑59 days, (b) delinquent 60‑89 days, (c) delinquent 90-119 days and (d) 120 or more days in each case, as of the last day of the preceding calendar month provided, however that any aggregate unpaid principal balance of Mortgage Loans shall be reported as of the last day of the related Due Period, (d) as to which foreclosure proceedings have been commenced and (e) with respect to which the related Mortgagor has filed for protection under applicable bankruptcy laws, with respect to whom bankruptcy proceedings are pending or with respect to whom bankruptcy protection is in force; (xi) with respect to any Mortgage Loan that became an REO Property during the preceding Prepayment Period, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (xii) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xiii) by Loan Group and in the aggregate, the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xiv) by Loan Group and in the aggregate, the aggregate amount of principal and interest Realized Losses incurred during the related Prepayment Period and the cumulative amount of principal and interest Realized Losses; (xv) the aggregate amount of Extraordinary Trust Fund Expenses withdrawn from the Collection Account or the Distribution Account for such Distribution Date; (xvi) the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates and the Class C Certificates, before and after giving effect to the distributions made on such Distribution Date, and the Notional Amount of the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xvii) the Monthly Interest Distributable Amount in respect of the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates and the Mezzanine Certificates for such Distribution Date; (xviii) by Loan Group and in the aggregate, the aggregate amount of any Net Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.24, and the aggregate amount of any Relief Act Interest Shortfalls for such Distribution Date; (xix) the Credit Enhancement Percentage for such Distribution Date; (xx) the related Net WAC Rate Carryover Amount for the Class A Certificates and the Mezzanine Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xxi) the Trustee Fee, the Servicer Fee and the PMI Insurer Fee on such Distribution Date; (xxii) whether a Stepdown Date or a Trigger Event has occurred; (xxiii) the Available Funds; (xxiv) the respective Pass‑Through Rates applicable to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Pass‑Through Rate applicable to the Class A Certificates and the Mezzanine Certificates for the immediately succeeding Distribution Date; (xxv) by Loan Group and in the aggregate, the Principal Balance of Mortgage Loans repurchased by the Seller; (xxvi) any other information that is required by the Code and regulations thereunder to be made available to Certificateholders; (xxvii) the amount on deposit in the Reserve Fund; (A) the dollar amount of payments received related to claims under the PMI Policy during the related Prepayment Period (and the number of Mortgage Loans to which such payments related), (B) the aggregate dollar amount of payments received related to claims under the PMI Policy since the Cut-off Date (and the number of Mortgage Loans to which such payments related); and (C) the amount of coverage remaining under the PMI Policy; (A) the dollar amount of claims made under the PMI Policy that were denied during the related Prepayment Period (and the number of Mortgage Loans to which such denials related) and (B) the aggregate dollar amount of claims made under the PMI Policy that were denied since the Cut-off Date (and the number of Mortgage Loans to which such denials related); (xxx) the amount of Subsequent Recoveries and Gross Subsequent Recoveries for the related Prepayment Period and the cumulative amount of Subsequent Recoveries and Gross Subsequent Recoveries in the aggregate and for each of Loan Group I and Loan Group II; (xxxi) the Group I Swap Payment, the Group II Swap Payment, the Swap Payment, the Counterparty Payment, the Group I Net Swap Payment, the Group II Net Swap Payment, the Net Swap Payment and the Net Counterparty Payment for such Distribution Date; the Group I Swap Termination Payment paid on such Distribution Date, the Group II Swap Termination Payment paid on such Distribution Date, the Swap Termination Payment and the Swap Termination Payment remaining unpaid from prior Distribution Dates, and in each case whether payable by the Supplemental Interest Trust Trustee or by the Swap Counterparty; and any Counterparty Payments unpaid from prior Distribution Dates; and (xxxii) the Group I Final Maturity Reserve Amount, the Group II Final Maturity Reserve Amount, the Supplemental Final Maturity Reserve Amount, the Aggregate Final Maturity Reserve Amount and the aggregate amount on deposit in the Final Maturity Reserve Account for such Distribution Date. The Trustee shall make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the Servicer, the NIMS Insurer, the Swap Counterparty and the Rating Agencies via the Trustee’s internet website. The Trustee’s internet website shall initially be located at ▇▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/invr. Assistance in using the website can be obtained by calling the Trustee’s customer service desk at 1‑800‑735‑7777. Parties that are unable to use the above distribution options are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Closing Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall forward to the Holders of the occurrence of Residual Certificates and the NIMS Insurer a Tenant Event of Default (or copy of the occurrence of any facts or circumstances which, with reports forwarded to the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthHolder of a Residual Certificate, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Holder of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which a Residual Certificate. Such obligation of the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision requirements of this Lease;the Code as from time to time in force. (xviiie) The monthly reporting required pursuant to Section 4.1 hereof; On each Distribution Date the Trustee shall provide Bloomberg Financial Markets, L.P. (xix“Bloomberg”) Semi-annual property-CUSIP level betting & gaming revenue information received pursuant to Section 10.2 factors for each Class of the MTSA by TenantCertificates as of such Distribution Date, ERI or any direct or indirect subsidiary of ERI using a format and media mutually acceptable to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Trustee and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial StatementBloomberg.

Appears in 2 contracts

Sources: Pooling and Servicing Agreement (Long Beach Mortgage Loan Trust 2006-8), Pooling and Servicing Agreement (Long Beach Mortgage Loan Trust 2006-6)

Statements. Tenant (a) On each Distribution Date, the Securities Administrator shall furnish or cause make available to the Trustee, each Certificateholder, the Seller, the Master Servicer and the Rating Agency, a statement based, as applicable, on loan-level information obtained from the Master Servicer and the Servicers (the “Distribution Date Statement”) as to the distributions to be furnished the following to Landlordmade or made, as applicable, on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement Class of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect Certificates allocable to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)principal; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting Class of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed Certificates allocable to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowinterest; (iii) As the Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage and Subordinate Prepayment Percentage with respect to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow each Loan Group for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowfollowing Distribution Date; (iv) As soon the aggregate amount of servicing compensation received by each Servicer during the related Due Period and such other customary information as it is prepared and in no event later than sixty (60) days after the end of each Fiscal YearTrustee deems necessary or desirable, or which a statement of Net Revenue with respect Certificateholder reasonably requests, to each Facility with respect enable Certificateholders to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any Advances for the related Due Period and the amount of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)unreimbursed Advances; (vi) [reserved]; (vii) the Loan Group Balance and related Net WAC and Net WAC Cap for each Loan Group at the Close of Business at the end of the related Due Period; (viii) for each Loan Group, the aggregate Principal Balance of the One-Year MTA Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (ix) for each Loan Group, the aggregate Principal Balance of the One-Month LIBOR Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (x) for each Loan Group, the aggregate Principal Balance of the COFI Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (xi) for each Loan Group, the number, weighted average remaining term to maturity and weighted average Loan Rate of the related Mortgage Loans as of the related Due Date; (xii) the number and aggregate unpaid principal balance of Mortgage Loans, in the aggregate and for each Loan Group, (a) 30 to 59 days Delinquent, (b) 60 to 89 days Delinquent, (c) 90 or more days Delinquent, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy, in each case as of the close of business on the last day of the preceding calendar month; (xiii) the book value of any REO Property as of the Close of Business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties in each Loan Group as of the Close of Business of the last day of the preceding Due Period; (xiv) the aggregate amount of Principal Prepayments with respect to each Loan Group made during the related Prepayment Period; (xv) the aggregate amount of Realized Losses incurred during the related Due Period and the cumulative amount of Realized Losses and the amount of Realized Losses, if any, allocated to each Class of Certificates or Principal-Only Components; (xvi) the Class Certificate Principal Balance or Class Certificate Notional Amount, as applicable, of each Class of Certificates and the Apportioned Principal Balances of the Subordinate Certificates after giving effect to any distributions made thereon, on such Distribution Date; (xvii) the Interest Distributable Amount in respect of each Class of Certificates, for such Distribution Date and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xviii) the aggregate amount of any Net Interest Shortfalls and the Unpaid Interest Shortfall Amount for such Distribution Date; (xix) the Available Funds with respect to each Loan Group; (xx) the Pass-Through Rate for each Class of Certificates for such Distribution Date; (xxi) the aggregate Principal Balance of Mortgage Loans purchased hereunder by the Seller during the related Due Period, and indicating the relevant section of the related Servicing Agreement, or the Section of this Agreement, as applicable, requiring or allowing the purchase of each such Mortgage Loan; (xxii) the amount of any Principal Deficiency Amounts or Accrued Interest Amounts paid to an Undercollateralized Group or amounts paid pursuant to Section 5.01(e)(i); (xxiii) current Recoveries allocable to each Loan Group; (xxiv) cumulative Recoveries allocable to each Loan Group; (xxv) the amount of any Basis Risk Shortfall, if any, and the related accrued interest thereon; (xxvi) for each Loan Group, the amount of Deferred Interest and Net Deferred Interest, if any, for such Loan Group; and (xxvii) payments made under the Yield Maintenance Agreements, if any; and (xxviii) the amount of Net Deferred Interest, if any, added to the Class Certificate Principal Balance or Component Principal Balance of the related Certificates and Principal-Only Components. The Securities Administrator will make the Distribution Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the other parties to this Agreement via the Securities Administrator’s internet website. The Securities Administrator’s internet website shall initially be located at “▇▇▇.▇▇▇▇▇▇▇.▇▇▇.” Assistance in using the website can be obtained by calling the Securities Administrator’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Securities Administrator shall have the right to change the way such reports are distributed in order to make such distribution more convenient and/or more accessible to the parties, and the Securities Administrator shall provide timely and adequate notification to all parties regarding any such change. In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-Off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Securities Administrator shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) and (xxi) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Securities Administrator shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished by the Securities Administrator to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Certificateholders pursuant to any other provision requirements of this Lease;the Code as are in force from time to time. (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xxc) On each Distribution Date, the Securities Administrator shall supply an annual electronic tape to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg Financial Markets, Inc. on a monthly basis, and shall supply an electronic tape to Loan Performance and Intex Solutions in a detailed reconciliation of the financial information being provided format acceptable to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Loan Performance and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described Intex Solutions on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementmonthly basis.

Appears in 2 contracts

Sources: Pooling and Servicing Agreement (HarborView Mortgage Loan Trust 2004-8), Pooling and Servicing Agreement (HarborView Mortgage Loan Trust 2004-8)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the NIMS Insurer, the Servicer, the Swap Provider and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Net Monthly Excess Cashflow, a balance sheetthe Overcollateralized Amount, and statement of cash flows for ERIthe Overcollateralization Release Amount, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount and the Credit Enhancement Percentage as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared the fees and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect expenses of the periodic determination of the Variable Rent hereunder)Trust Fund accrued and paid on such Distribution Date and to whom such fees and expenses were paid; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to Advances for the related Due Period (including the general purpose of such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming AuthoritiesAdvances); (vi) the aggregate Principal Balance of the Mortgage Loans and any REO Properties as of the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans (not including a Liquidated Mortgage Loan as of the end of the Prepayment Period) that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) using the OTS Method (as described below) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties, as well as the aggregate principal balance of Mortgage Loans that were liquidated and the net proceeds resulting therefrom; (ix) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the calendar month preceding the related Distribution Date; (x) the aggregate amount of Principal Prepayments made during the related Prepayment Period, separately indicating Principal Prepayments in full and Principal Prepayments in part; (xi) the Delinquency Percentage and the Realized Loss Percentage; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period which will include the cumulative amount of Realized Losses and the aggregate amount of Subsequent Recoveries received during the related Prepayment Period; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account or the Distribution Account for such Distribution Date; (xiv) the Certificate Principal Balance of each Class of Floating Rate Certificates and the Class C Certificates, before and after giving effect to the distributions, and allocations of Realized Losses, made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of each Class of Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to each Class of Floating Rate Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.24; (xvii) the Net WAC Rate Carryover Amount for each Class of Floating Rate Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xviii) whether the Stepdown Date or a Trigger Event has occurred; (xix) the total cashflows received and the general sources thereof (including amounts received from the Supplemental Interest Trust Trustee under the Interest Rate Swap Agreement and from the Cap Trustee under the Interest Rate Cap Agreement and under the Basis Risk Cap Agreement); (xx) the respective Pass-Through Rates applicable to each Class of Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Floating Rate Certificates for the immediately succeeding Distribution Date; (xxi) payments, if any, made under the Basis Risk Cap Agreement and the Interest Rate Cap Agreement and the amount distributed to the Floating Rate Certificates from such payments; (xxii) the amount of any Net Swap Payments or Swap Termination Payments paid to the Swap Provider; and (xxiii) the applicable Record Date, Accrual Period and any other applicable determination dates for calculating distributions for such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the NIMS Insurer, the Swap Provider and the Rating Agencies via the Trustee’s internet website located at w▇▇.▇▇▇▇▇▇▇.▇▇▇. Assistance in using the website can be obtained by calling the Trustee’s customer service desk at 1-866-846-4526. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee’s internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. For all purposes of this Agreement, with respect to any Mortgage Loan, delinquencies shall be determined by the Trustee from information provided by the Servicer and reported by the Trustee based on the OTS methodology for determining delinquencies on mortgage loans similar to the Mortgage Loans. By way of example, a Mortgage Loan would be Delinquent with respect to a Monthly Payment due on a Due Date if such Monthly Payment is not made by the close of business on the Mortgage Loan’s next succeeding Due Date, and a Mortgage Loan would be more than 30-days Delinquent with respect to such Monthly Payment if such Monthly Payment were not made by the close of business on the Mortgage Loan’s second succeeding Due Date (the “OTS Method”). The Servicer hereby represents and warrants to the Depositor that this delinquency recognition policy is not less restrictive than any delinquency recognition policy established by the primary safety and soundness regulator, if any, of the Servicer. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to the NIMS Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the NIMS Insurer and the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) a rent roll for the subject monthNIMS Insurer, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating incomeupon request, and other each Person who at any time during the calendar year was a Residual Certificateholder, if requested in writing by such Person, such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision requirements of this Lease;the Code as from time to time in force. (xviiie) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual propertyOn each Distribution Date, the Trustee shall make available an updated electronic loan-level betting & gaming revenue information received pursuant data tape to Section 10.2 Bloomberg Financial Markets, Inc., Loan Performance and Intex Solutions in a format acceptable to each of the MTSA by TenantBloomberg Financial Markets, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunderInc., in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Loan Performance and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive InformationIntex Solutions, and (iii) any information subject shall supply such electronic loan-level data tape to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if each Certificateholder who requests such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statement.

Appears in 2 contracts

Sources: Pooling and Servicing Agreement (Soundview Home Loan Trust 2007-Opt3), Pooling and Servicing Agreement (Soundview Home Loan Trust 2007-Opt2)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Master Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Master Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31, 2017Class S Certificates), but if Guarantor is not a reporting company under separately identified, allocable to principal and the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Master Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Master Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date and the number and aggregate principal balance of all Subsequent Mortgage Loans added during the preceding Prepayment Period; (viii) the number and aggregate unpaid principal balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 91 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (ix) with respect to any Mortgage Loan that became an REO Property during the preceding Prepayment Period, the loan number of such Mortgage Loan, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates and the Class C Certificates and the Notional Amount of the Class S Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of the Class A Certificates, the Mezzanine Certificates, the Class C Certificates and the Class S Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Master Servicer pursuant to Section 3.26; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for the Class A Certificates and the Mezzanine Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Pass- Through Rate applicable to the Class A Certificates and the Mezzanine Certificates for the immediately succeeding Distribution Date; (xxiii) the amount on deposit in the Pre-Funding Account, the Interest Coverage Account and the Reserve Fund; and (xxiv) for the distribution occurring on the Distribution Date immediately following the end of the related Funding Period, the balance on deposit in the Pre-Funding Account that has not been used to purchase Subsequent Mortgage Loans and that is being distributed to the Class A Certificates as a mandatory prepayment of principal, if any, on such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the Rating Agencies via the Trustee's internet website and its fax-on-demand service. The Trustee's fax-on- demand service may be accessed by calling (301) 815-6610. The Trustee's intern▇▇ ▇▇▇▇▇▇▇ ▇▇▇ll initially be located at "www.ctslink.com". Assistance in usin▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇r the fax-on-demand service can be obtained by calling the Trustee's customer service desk at (301) 815-6600. Parties that are una▇▇▇ ▇▇ ▇▇▇ ▇▇▇ above distribution options are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall forward to the Class R Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthClass R Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Class R Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 2 contracts

Sources: Pooling and Servicing Agreement (Option One Mort Accept Corp Asset Backed Cert Series 2000-3), Pooling and Servicing Agreement (Option One Mort Accept Corp Asset Backed Cert Series 2000-3)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Swap Provider, the Servicer and the Rating Agencies, a statement as to Landlord:the distributions made on such Distribution Date (the “Monthly Statement”): (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossNet Monthly Excess Cashflow, a balance sheetthe Overcollateralized Amount, and statement of cash flows for ERIthe Overcollateralization Release Amount, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared any fees and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect expenses of the periodic determination of the Variable Rent hereunder)Trust accrued and paid on such Distribution Date and to whom such fees and expenses were paid; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to Advances for the related Due Period (including the general purpose of such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming AuthoritiesAdvances); (vi) the aggregate amount of interest and scheduled principal received or advanced by the Servicer with respect to the related Due Period; (vii) with respect to each Loan Group, the related group balance at the Close of Business at the end of the related Due Period; (viii) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (ix) the number and aggregate unpaid principal balance of Mortgage Loans (except those Mortgage Loans that are liquidated as of the end of the related Prepayment Period) that were (as determined using the OTS method) (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (x) the Delinquency Percentage; (xi) the total number and cumulative principal balance of all Liquidated Mortgage Loans as of the Close of Business of the last day of the preceding Prepayment Period, prior to the reduction of each principal balance to zero; (xii) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xiii) the aggregate amount of Principal Prepayments in full, the aggregate amount of Principal Prepayments in part and Net Liquidation Proceeds made during the related Prepayment Period; (xiv) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xv) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xvi) the Certificate Principal Balance of each Class of Class A Certificates, each class of Mezzanine Certificates and the Class C Certificates, before and after giving effect to the distributions made on such Distribution Date; (xvii) the Monthly Interest Distributable Amount in respect of each Class of Class A Certificates, each class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date; (xviii) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.26; (xix) the Senior Credit Enhancement Percentage for such Distribution Date; (xx) the Net WAC Rate Carryover Amount for each class of Class A Certificates and each class of Mezzanine Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xxi) the amount of any Net Swap Payments or Swap Termination Payments (a) due from the Trust and (b) due from the Swap Provider; (xxii) whether the Stepdown Date or a Trigger Event is in effect; (xxiii) the total cashflows received; (xxiv) the respective Pass-Through Rates applicable to each Class of Class A Certificates, each Class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Class A Certificates and each class of Mezzanine Certificates for the immediately succeeding Distribution Date; (xxv) (A) the amount of payments received related to claims under the PMI Policy during the related Prepayment Period (and the number of Mortgage Loans to which such payments related) and (B) the cumulative amount of payments received related to claims under the PMI Policy since the Closing Date (and the number of Mortgage Loans to which such payments related); (xxvi) A) the dollar amount of claims made under the PMI Policy that were denied during the Prepayment Period (and the number of Mortgage Loans to which such denials related) and (B) the dollar amount of the cumulative claims made under the PMI Policy that were denied since the Closing Date (and the number of Mortgage Loans to which such denials related); (xxvii) the amount on deposit Net WAC Rate Carryover Reserve Account; and (xxviii) the applicable Record Date, Accrual Period and Determination Date for calculating distributions for such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the NIMS Insurer and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at “w▇▇.▇▇▇▇▇▇▇.▇▇▇”. Assistance in using the website can be obtained by calling the Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the distribution date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. In addition, the Trustee will report on Form 10-D any material breaches of representations and warranties regarding the Mortgage Loans to the extent known to the Trustee and if applicable, material modifications, extensions or waivers to Mortgage Loan terms, fees, penalties or payments during the preceding calendar month or that have become material over time. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to the NIMS Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the NIMS Insurer and the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items Trustee shall deliver to the NIMS Insurer and each Person who at any time during the calendar year was a Residual Certificateholder, if requested in writing by such Person, such information as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision requirements of this Lease;the Code as from time to time in force. (xviiie) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 For each Distribution Date, through and including the Distribution Date in December 2006, the Trustee shall calculate the Significance Percentage of the MTSA by TenantInterest Rate Swap Agreement. If on any such Distribution Date, ERI the Significance Percentage is equal to or any direct or indirect subsidiary of ERI to greater than 9%, the extent relevant to Trustee shall promptly notify the calculation of Net Revenues hereunderDepositor and the Depositor, in each case within fifteen (15) days on behalf of the receipt thereof; (xx) On an annual basisTrustee, a detailed reconciliation of shall obtain the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed delivered by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided the Swap Provider pursuant to Section 23.1(b)(iii) the terms of the Interest Rate Swap Agreement. If, on any succeeding Distribution Date through and including the Distribution Date in December 2006, the Significance Percentage is equal to or greater than 10%, the Trustee shall be prepared in compliance with applicable federal securities lawspromptly notify the Depositor and the Depositor shall, including Regulation S-X (and for any prior periods required thereunder)within 5 Business Days of such Distribution Date, if and deliver to the extent Trustee the financial information provided to it by the Swap Provider for inclusion in the Form 10-D relating to such compliance with federal securities lawsDistribution Date. If on any Distribution Date after December 2006, including Regulation S-X (and the Significance Percentage is greater than 10%, the Trustee shall include the Significance Percentage on the statement to Certificateholders for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementthe related Distribution Date.

Appears in 2 contracts

Sources: Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2006-3), Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2006-3)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the NIMS Insurer, the Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date and the number and aggregate Stated Principal Balance of all Subsequent Mortgage Loans added during the Funding Period; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties, as well as the aggregate principal balance of Mortgage Loans that were liquidated and the net proceeds resulting therefrom; (ix) [reserved]; (x) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period, separately indicating Principal Prepayments in full and Principal Prepayments in part; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses and the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the cumulative amount of Subsequent Recoveries received since the Closing Date; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of each Class of Adjustable-Rate Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of each Class of Adjustable-Rate Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to each Class of Adjustable-Rate Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.24; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for each Class of Adjustable-Rate Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to each Class of Adjustable-Rate Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Adjustable-Rate Certificates for the immediately succeeding Distribution Date; (xxiii) payments, if any, made under the Cap Contract; (xxiv) the amount on deposit in the Pre-Funding Accounts and the Interest Coverage Accounts; and (xxv) for the distribution occurring on the Distribution Date immediately following the end of the Funding Period, the balance on deposit in the Group I Pre-Funding Account and/or the Group II Pre-Funding Account that has not been used to purchase Subsequent Group I Mortgage Loans and/or Subsequent Group II Mortgage Loans, as applicable, and that is being distributed to the related Class A Certificates as a mandatory distribution of principal, if any, on such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the NIMS Insurer, the Credit Risk Manager and the Rating Agencies via the Trustee’s internet website. The Trustee’s internet website shall initially be located at “h▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/▇▇▇▇”. Assistance in using the website can be obtained by calling the Trustee’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee’s internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to the NIMS Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the NIMS Insurer and the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) a rent roll for the subject monthNIMS Insurer, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating incomeupon request, and other each Person who at any time during the calendar year was a Residual Certificateholder, if requested in writing by such Person, such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 2 contracts

Sources: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2005-Ffh3), Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2005-Ffh3)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Swap Provider, the Servicer and the Rating Agencies, a statement as to Landlord:the distributions made on such Distribution Date (the “Monthly Statement”): (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossNet Monthly Excess Cashflow, a balance sheetthe Overcollateralized Amount, and statement of cash flows for ERIthe Overcollateralization Release Amount, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared any fees and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect expenses of the periodic determination of the Variable Rent hereunder)Trust accrued and paid on such Distribution Date and to whom such fees and expenses were paid; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to Advances for the related Due Period (including the general purpose of such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming AuthoritiesAdvances); (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the aggregate amount of depreciation interest and any improvements thereto, substantially in scheduled principal received or advanced by the form attached hereto as Exhibit D, and such additional customary and reasonable financial information Servicer with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Daterelated Due Period; (vii) Within three (3) with respect to each Loan Group, the related group balance at the Close of Business Days of obtaining actual knowledge at the end of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances)related Due Period; (viii) Such additional customary the number, aggregate Principal Balance, weighted average remaining term to maturity and reasonable financial information weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (ix) the number and aggregate unpaid principal balance of Mortgage Loans (except those Mortgage Loans that are liquidated as of the end of the related Prepayment Period) that were (as determined using the OTS method) (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to any Facility59 days, Tenant(2) 60 to 89 days and (3) 90 or more days, CEOC(B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, ERI (2) 60 to 89 days and their Affiliates which shall be limited (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to balance sheets 59 days, (2) 60 to 89 days and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, 3) 90 or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder)more days, in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord Close of Business on or before twenty-five (25) days after the end last day of each the calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during preceding such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; Distribution Date and (CD) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3REO Properties; (x) The Annual Capital Budget as and when required in Section 10.5(d)the Delinquency Percentage; (xi) The monthly revenue the total number and Capital Expenditure reporting required pursuant cumulative principal balance of all Liquidated Mortgage Loans as of the Close of Business of the last day of the preceding Prepayment Period, prior to Section 10.5(c)the reduction of each principal balance to zero; (xii) Together with the monthly reporting required pursuant to total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each FacilityPrepayment Period; (xiii) Operating budget for each SPE Tenant for each Fiscal Yearthe aggregate amount of Principal Prepayments in full, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement aggregate amount of Principal Prepayments in part and Net Liquidation Proceeds made during the Fiscal Year to which such operating budget relatesrelated Prepayment Period; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlordthe aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xv) The quarterly reporting in respect the aggregate amount of Bookings required pursuant to Section 22.7 of this Leaseextraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xvi) The reporting/copies the Certificate Principal Balance of Subleases each Class of Class A Certificates, each class of Mezzanine Certificates and the Class C Certificates, before and after giving effect to the distributions made by Tenant in accordance with Section 22.3on such Distribution Date; (xvii) Any notices or reporting required pursuant the Monthly Interest Distributable Amount in respect of each Class of Class A Certificates, each class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to Article XXXII hereof or otherwise pursuant to any other provision of this Leasethe Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date; (xviii) The monthly reporting required the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 4.1 hereof3.26; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereofSenior Credit Enhancement Percentage for such Distribution Date; (xx) On an annual basisthe Net WAC Rate Carryover Amount for each class of Class A Certificates and each class of Mezzanine Certificates, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xxi) the amount of any Net Revenue statements that Tenant Swap Payments or Swap Termination Payments (a) due from the Trust and (b) due from the Swap Provider; (xxii) whether the Stepdown Date or a Trigger Event is providing in effect; (xxiii) the total cashflows received (including amounts received from the Supplemental Interest Trust Trustee under the Interest Rate Swap Agreement); (xxiv) the respective Pass-Through Rates applicable to Landlord pursuant each Class of Class A Certificates, each Class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to clause each Class of Class A Certificates and each class of Mezzanine Certificates for the immediately succeeding Distribution Date; (ivxxv) above, which reconciliation shows how the amount on deposit Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) aboveWAC Rate Carryover Reserve Account; and (xxixxvi) the applicable Record Date, Accrual Period and Determination Date for calculating distributions for such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the NIMS Insurer, the Swap Provider and the Rating Agencies via the Trustee’s internet website. The Trustee’s internet website shall initially be located at “w▇▇.▇▇▇▇▇▇▇.▇▇▇”. Assistance in using the website can be obtained by calling the Trustee’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access the Trustee’s internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the distribution date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In connection with the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. In addition, the Trustee will report on Form 10-D any Fee Mortgagee Securitizationmaterial breaches of representations and warranties regarding the Mortgage Loans to the extent known to the Trustee and if applicable, Tenant shallmaterial modifications, upon extensions or waivers to Mortgage Loan terms, fees, penalties or payments during the written request preceding calendar month or that have become material over time. For all purposes of Landlord: (A) at the sole cost and expense of Landlordthis Agreement, reasonably cooperate with Landlord in providing information with respect to any Mortgage Loan, delinquencies shall be determined by the Leased Property or any portion thereofTrustee from information provided by the Servicer and reported by the Trustee based on the OTS methodology for determining delinquencies on mortgage loans similar to the Mortgage Loans. By way of example, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Informationa Mortgage Loan would be Delinquent with respect to a Monthly Payment due on a Due Date if such Monthly Payment is not made by the close of business on the Mortgage Loan's next succeeding Due Date, and (iii) any information a Mortgage Loan would be more than 30-days Delinquent with respect to such Monthly Payment if such Monthly Payment were not made by the close of business on the Mortgage Loan’s second succeeding Due Date. The Servicer hereby represents and warrants to the Depositor that it is not subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested any delinquency recognition policy established by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (its safety and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementsoundness regulators.

Appears in 2 contracts

Sources: Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2007-Cp1), Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2007-Cp1)

Statements. Tenant (a) Not later than 1:00 p.m., New York time, on the fifth Business Day prior to each Distribution Date, the Servicer shall furnish deliver to the Trustee by electronic means a computer file containing the loan level information necessary to permit the Trustee to calculate the information required by clauses (i) through (xxvi) below as of the end of the preceding Prepayment Period or cause Due Period, as applicable, and such other information as the Trustee shall reasonably require, and the Seller hereby agrees to provide the Trustee and the Servicer with an amended Prepayment Charge Schedule, if required, at such time. Not later than each Distribution Date the Trustee shall prepare a statement (the “Remittance Report”) containing the information set forth below with respect to such Distribution Date, which information shall be based upon the loan level information furnished by the following to LandlordServicer upon which the Trustee shall conclusively rely without independent verification thereof: (i) As to Available Funds and each SPE Tenant: (a) within ninety (90) days after Class’ Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)related Distribution Date; (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each aggregate amount of the first three (3) Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) Certificates on such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowDistribution Date; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, distribution set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to paragraph (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including above in respect of Landlord REIT’s qualification as a REIT) interest and (iii) the amount thereof in respect of any other federalClass Interest Carryover Shortfall, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowand the amount of any Class Interest Carryover Shortfall remaining; (iv) As soon as it is prepared the amount of the distribution set forth in paragraph (i) above in respect of principal and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof amount thereof in respect of the periodic determination of the Variable Rent hereunder)Class Principal Carryover Shortfall, and any remaining Class Principal Carryover Shortfall; (v) Prompt Notice to Landlord the amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)Excess Interest paid as principal; (vi) the Servicing Fee and the Trustee Fee (including the separate amounts payable to each of the Trustee and its Custodian); (vii) the Pool Balance as of the close of business on the last day of the preceding Due Period; (viii) the Class Principal Balance of each Class of Certificates after giving effect to payments allocated to principal above; (ix) the Overcollateralization Amount and the Required Overcollateralization Amount as of the close of business on the Distribution Date, after giving effect to distributions of principal on such Distribution Date; (x) whether a Cumulative Loss Event or a Delinquency Event has occurred and is continuing and the calculation thereof; (xi) the aggregate amount of Principal Prepayments received during the related Prepayment Period; (xii) the amount of all Curtailments that were received during the Due Period; (xiii) the principal portion of all Monthly Payments received during the Due Period; (xiv) the interest portion of all Monthly Payments received on the Mortgage Loans during the Due Period; (xv) the amount of the Monthly Advances and the Compensating Interest payment to be made on the Determination Date; (xvi) the amount to be distributed to the Class P Certificates, Class BIO and Class R Certificateholders, respectively for the Distribution Date; (xvii) the weighted average remaining term to maturity of the Mortgage Loans and the weighted average Loan Rate as of the first day of the related Due Period; (xviii) the amount of all payments or reimbursements to the Servicer pursuant to Sections 3.03(ii) and (vi) (as reported by the Servicer); (xix) the number of Mortgage Loans outstanding at the beginning and at the end of the related Due Period; (xx) the amount of Liquidation Loan Losses experienced during the preceding Due Period and the Cumulative Net Losses as a percentage of the Cut-Off Date Pool Balance; (xxi) as of the end of the preceding calendar month, the number and Principal Balance of Mortgage Loans which are 30-59 days delinquent; the number and Principal Balance of Mortgage Loans which are 60-89 days delinquent; the number and Principal Balance of Mortgage Loans which are 90 or more days delinquent (including the number and Principal Balance of Mortgage Loans which are in foreclosure; the number and Principal Balance of Mortgage Loans in bankruptcy; and the number and Principal Balance of Mortgage Loans which are REO Property, each separately set forth); (xxii) for the Distribution Dates in July 2003 and August 2003, the amount, if any, on deposit in the First Payment Loan Account; (xxiii) the number and aggregate Principal Balance of Mortgage Loans, other than Mortgage Loans in default or imminent default, that were modified by the Servicer during the related Due Period (as reported by the Servicer); (xxiv) the amount of Net Rate Cap Carryover distributed to each Class of Offered Certificates (other than the Class A-IO Certificates), stating separately any amounts received from the cap provider with respect to the Interest Rate Cap Agreement, and the amount of Net Rate Cap Carryover remaining for each such Class; (xxv) the amount on deposit in the Net Rate Cap Fund, and the amounts of each deposit and withdrawal from such Account; and (xxvi) for each Pre-Funding Distribution Date, the remaining amount in the Pre-Funding Account. The Trustee shall make available such report to the Servicer, the Seller, the Certificateholders, the Rating Agencies, Bloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) and Intex Solutions (at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the Distribution Date. The Trustee may fully rely upon and shall have no liability with respect to information provided by the Servicer. In the case of information furnished pursuant to subclauses (ii), (iii), (iv) and (vi) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the related Cut-Off Date. The Trustee will make the Remittance Report (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, and the parties to this Agreement via the Trustee’s internet website. The Trustee’s internet website shall initially be located at “▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇”. Assistance in using the website can be obtained by calling the Trustee’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution options are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way Remittance Reports are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access the Trustee’s internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Remittance Report and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party hereto). (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall furnish to each Person who at any time during the calendar year was a Holder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (iii) and (iv) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall forward to the Class R Certificateholders a copy of the occurrence of a Tenant Event of Default (or reports forwarded to the Holders of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificates in respect of any Facility), such Distribution Date and a written notice statement setting forth the amounts actually distributed to Landlord regarding the same, which notice shall include a detailed description of Class R Certificateholders on such Distribution Date together with such other information as the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthClass R Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Class R Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared by the Fiscal Year Trustee or and furnished to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested Certificateholders by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise the Trustee pursuant to any other provision requirements of the Code as from time to time in force. (e) The Servicer and the Trustee shall furnish to the Depositor, the Seller and each Certificateholder (if requested in writing), during the term of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by TenantAgreement, ERI such periodic, special or any direct other reports or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunderinformation, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basiswhether or not provided for herein, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) aboveas shall be necessary, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information reasonable or appropriate with respect to the Leased Property Certificateholder or any portion thereofotherwise with respect to the purposes of this Agreement, Tenant all such reports or its Affiliates information to be provided by and in accordance with such applicable instructions and directions (excluding if requested in writing) as the Certificateholder may reasonably require; provided that the Servicer and the Trustee shall be entitled to be reimbursed by such Certificateholder for their respective fees and actual expenses associated with providing such reports, if such reports are not generally produced in the ordinary course of their respective businesses or readily obtainable. (if) any material non-public information, (ii) any Competitively Sensitive InformationReports and computer diskettes or files furnished by the Servicer pursuant to this Agreement shall be deemed confidential and of a proprietary nature, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) copied or (iii) of this parenthetical), distributed except to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, law or to the extent accurate, approve (and Rating Agencies. No Person entitled to receive copies of such reports or diskettes or files or lists of Certificateholders shall use the extent inaccurate, identify information therein for the same with particularity) portions purpose of any Disclosure Document (soliciting the customers of the Seller or for any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared purpose except as set forth in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementthis Agreement.

Appears in 2 contracts

Sources: Pooling and Servicing Agreement (Home Equity Loan Asset-Backed Certificates Series 2003-2), Pooling and Servicing Agreement (Home Equity Loan Asset-Backed Certificates Series 2003-2)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Master Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Master Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Master Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Master Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (ix) [reserved]; (x) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Master Servicer pursuant to Section 3.26; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for the Class A Certificates and the Mezzanine Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Pass- Through Rate applicable to the Class A Certificates and the Mezzanine Certificates for the immediately succeeding Distribution Date; (xxiii) (A) the amount of payments received related to claims under the PMI Policy during the related Prepayment Period (and the number of Mortgage Loans to which such payments related) and (B) the cumulative amount of payments received related to claims under the PMI Policy since the Closing Date (and the number of Mortgage Loans to which such payments related); (A) the dollar amount of claims made under the PMI Policy that were denied during the Prepayment Period (and the number of Mortgage Loans to which such denials related) and (B) the dollar amount of the cumulative claims made under the PMI Policy that were denied since the Closing Date (and the number of Mortgage Loans to which such denials related); and (xxv) the amount on deposit in the Dividend Account immediately prior to the related Master Servicer Remittance Date, the amount deposited into the Dividend Account on the related Master Servicer Remittance Date (separately identifying the amount received from Mortgagors and the amount advanced) and the amount withdrawn from the Dividend Account on the related Master Servicer Remittance Date (separately identifying the amount refunded to Mortgagors and the amount distributed to the holder of the Dividend Account Certificate on such Distribution Date). The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use website are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on and shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing such statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party hereto). In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the Class R Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthClass R Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Class R Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Asset Backed Certificates Series 2001-Ff2)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by each Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Servicers and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of servicing compensation received by each Fiscal Year, a statement of Net Revenue Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances and/or Monthly Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date and the number and aggregate Stated Principal Balance of all Subsequent Mortgage Loans added during the Funding Period; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties, as well as the aggregate principal balance of Mortgage Loans that were liquidated and the net proceeds resulting therefrom; (ix) [reserved]; (x) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period, separately indicating Principal Prepayments in full and Principal Prepayments in part; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses and the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the cumulative amount of Subsequent Recoveries received since the Closing Date; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of each Class of Floating Rate Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of the Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Floating Rate Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the JPMorgan and NCHLS pursuant to Section 3.24 or by Countrywide Servicing pursuant to Section 2.04 of Exhibit B; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for the Floating Rate Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to the Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to the Floating Rate Certificates for the immediately succeeding Distribution Date; (xxiii) payments, if any, made under the Cap Contract and the amount distributed to each Class of Certificates from payments made under the Cap Contract; (xxiv) the amount of any Net Swap Payments or Swap Termination Payments; (xxv) the amount on deposit in the Pre-Funding Accounts and the Interest Coverage Accounts; and (xxvi) for the distribution occurring on the Distribution Date immediately following the end of the Funding Period, the balance on deposit in the Group I Pre-Funding Account and/or the Group II Pre-Funding Account that has not been used to purchase Subsequent Group I Mortgage Loans and/or Subsequent Group II Mortgage Loans, as applicable, and that is being distributed to the related Class A Certificates as a mandatory distribution of principal, if any, on such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the Credit Risk Manager and the Rating Agencies via the Trustee’s internet website. The Trustee’s internet website shall initially be located at “h▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/▇▇▇▇”. Assistance in using the website can be obtained by calling the Trustee’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee’s internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the related Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthResidual Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Soundview Home Loan Trust 2005-4, Asset-Backed Certificates, Series 2005-4)

Statements. Tenant (a) On each Distribution Date, the Trustee shall furnish or cause make available to each Certificateholder, the Seller, and the Rating Agency, a statement based, as applicable, on loan-level information obtained from and the Servicer (the “Distribution Date Statement”) as to the distributions to be furnished the following to Landlordmade or made, as applicable, on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement Class of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect Certificates allocable to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)principal; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting Class of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed Certificates allocable to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowinterest; (iii) As the Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage and Subordinate Prepayment Percentage with respect to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow each Loan Group for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowfollowing Distribution Date; (iv) As soon the aggregate amount of servicing compensation received by the Servicer during the related Due Period and such other customary information as it is prepared and in no event later than sixty (60) days after the end of each Fiscal YearTrustee deems necessary or desirable, or which a statement of Net Revenue with respect Certificateholder reasonably requests, to each Facility with respect enable Certificateholders to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any Advances for the related Due Period and the amount of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)unreimbursed Advances; (vi) [reserved]; (vii) the Loan Group Balance and related Net WAC and Net WAC Cap for each Loan Group at the Close of Business at the end of the related Due Period; (viii) for each Loan Group, the aggregate Principal Balance of the One-Month MTA Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (ix) for each Loan Group, the aggregate Principal Balance of the One-Month LIBOR Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (x) for each Loan Group, the aggregate Principal Balance of the COFI Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (xi) for each Loan Group, the number, weighted average remaining term to maturity and weighted average Loan Rate of the related Mortgage Loans as of the related Due Date; (xii) the number and aggregate unpaid principal balance of Mortgage Loans, in the aggregate and for each Loan Group, (a) 30 to 59 days Delinquent, (b) 60 to 89 days Delinquent, (c) 90 or more days Delinquent, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy, in each case as of the close of business on the last day of the preceding calendar month; (xiii) the book value of any REO Property as of the Close of Business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties in each Loan Group as of the Close of Business of the last day of the preceding Due Period; (xiv) the aggregate amount of Principal Prepayments with respect to each Loan Group made during the related Prepayment Period; (xv) the aggregate amount of Realized Losses incurred during the related Due Period and the cumulative amount of Realized Losses and the amount of Realized Losses, if any, allocated to each Class of Certificates or PO Components; (xvi) the Class Certificate Principal Balance or Class Certificate Notional Amount, as applicable, of each Class of Certificates and the Apportioned Principal Balances of the Subordinate Certificates after giving effect to any distributions made thereon, on such Distribution Date; (xvii) the Interest Distributable Amount in respect of each Class of Certificates, for such Distribution Date and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xviii) the aggregate amount of any Net Interest Shortfalls and the Unpaid Interest Shortfall Amount for such Distribution Date; (xix) the Available Funds with respect to each Loan Group; (xx) the Pass-Through Rate for each Class of Certificates for such Distribution Date; (xxi) the aggregate Principal Balance of Mortgage Loans purchased hereunder by the Seller during the related Due Period, and indicating the relevant section of the Servicing Agreement, or the Section of this Agreement, as applicable, requiring or allowing the purchase of each such Mortgage Loan; (xxii) the amount of any Principal Deficiency Amounts or Accrued Interest Amounts paid to an Undercollateralized Group or amounts paid pursuant to Section 5.01(e)(i); (xxiii) current Recoveries allocable to each Loan Group; (xxiv) cumulative Recoveries allocable to each Loan Group; (xxv) the amount of any Basis Risk Shortfall, if any, and the related accrued interest thereon; (xxvi) for each Loan Group, the amount of Deferred Interest and Net Deferred Interest, if any, for such Loan Group; and (xxvii) payments made under the Yield Maintenance Agreement, if any; and (xxviii) the amount of Net Deferred Interest, if any, added to the Class Certificate Principal Balance or Component Principal Balance of the related Certificates and PO Components. The Trustee will make the Distribution Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the other parties to this Agreement via the Trustee’s internet website. The Trustee’s internet website shall initially be located at “▇▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/invr.” Assistance in using the website can be obtained by calling the Trustee customer service desk at ▇-▇▇▇-▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such reports are distributed in order to make such distribution more convenient and/or more accessible to the parties, and the Trustee shall provide timely and adequate notification to all parties regarding any such change. In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-Off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished by the Trustee to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Certificateholders pursuant to any other provision requirements of this Lease;the Code as are in force from time to time. (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xxc) On each Distribution Date, the Trustee shall supply an annual electronic tape to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg Financial Markets, Inc. on a monthly basis, and shall supply an electronic tape to Loan Performance and Intex Solutions in a detailed reconciliation of the financial information being provided format acceptable to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Loan Performance and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described Intex Solutions on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementmonthly basis.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (HarborView Mortgage Loan Trust 2004-11)

Statements. Tenant (a) On each Distribution Date, based on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause prepare and post on its website at ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇, a statement (the "Distribution Date Statement") as to be furnished the following to Landlorddistributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Certificates allocable to principal, separately identified and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, distribution made on such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, Distribution Date to the extent required as an Additional Fee Mortgagee RequirementHolders of the Class P Certificates allocable to Prepayment Charges, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Originator Prepayment Charge Payment Amounts and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC:the Holders of each Class of Certificates allocable to interest or Class CE Distributable Amount, separately identified; (Aiii) annual financial statements audited the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Targeted Overcollateralization Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by CEOC’s Accountant the Servicer during the related Collection Period; (v) the aggregate amount of Advances for the related Collection Period, cumulative unreimbursed Advances and Servicing Advances and cumulative Nonrecoverable Advances; (vi) the Pool Balance, at the close of business at the end of the related Collection Period; (vii) the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans (a) 30 to 59 days past due on a contractual basis, (b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in accordance bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) with GAAP covering respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Fiscal Year Mortgage Loan, the unpaid Principal Balance of the REO Property as of the close of business on the last Business Day of such calendar month and containing statement the Principal Balance of profit such Mortgage Loan as of the date it became an REO Property; (x) the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and losscumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) separately stated for each Loan Group, a balance sheetthe aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) separately stated for each Loan Group, the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiii) the Certificate Principal Balance of each Class of Certificates, after giving effect to the distributions, and statement allocations of cash flows Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xiv) the Accrued Certificate Interest in respect of each Class of Certificates for CEOCsuch Distribution Date and any related Cap Carryover Amounts, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results respective portions thereof, if any, remaining unpaid following the distributions made in respect of their operations such Certificates on such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23; (xvi) the amount of the Trustee Fee paid; (xvii) the Cap Carryover Amounts distributed on such Distribution Date, the amounts remaining after giving effect to distributions thereof on such Distribution Date and cash flow the amount of all Cap Carryover Amounts covered by withdrawals from the Class A-2 Reserve Account and Class M Reserve Account on such Distribution Date; (xviii) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xix) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xx) the Available Funds; (xxi) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxii) the periods indicated information contained in conformity with GAAP the Liquidation Report for such Distribution Date; (xxiii) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer, the Originator or the Seller during the related Prepayment Period and indicating the section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; (Bxxiv) that the audit aggregate Principal Balance of the Mortgage Loans repurchased by such Accountant the Servicer during the related Prepayment Period in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadlineSection 3.16; (Bxxv) quarterly unaudited financial statements, consisting the amount of the Credit Risk Manager Fee paid; (xxvi) the Mortgage Loan identifying number of each Mortgage Loan with a Prepayment Charge that was the subject of a statement Principal Prepayment in full during the related Collection Period, the Prepayment Charge listed on each related Mortgage Note and the Prepayment Charge collected, the Servicer Prepayment Charge Payment Amount paid by the Servicer or the Originator Prepayment Charge Payment Amount paid by the Originator with respect to each such Mortgage Loan; (xxvii) the aggregate amount of profit and loss, a balance sheetDA Dividends attributable DAD Mortgage Loans deposited into the DA Reserve Account for the related Collection Period, and statement the amount of cash flows DA Dividends remitted to the Trustee for CEOC, together with deposit in the Distribution Account as a certificate, executed result of or relating to a DA Forfeiture Event by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadlinerelated Mortgagor; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (ixxviii) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT amount of Subsequent Recoveries received during the Term of this Lease, (ii) related Prepayment Period. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each Mortgage Loans provided by the Servicer. In the case of clause information furnished pursuant to subclauses (i), (ii) and (iii)xiii) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant the amounts shall be expressed in accordance with GAAP covering such Fiscal Year and containing statement a separate section of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope a dollar amount for each Class for each $1,000 original dollar amount as of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and Cut-off Date. (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end Within a reasonable period of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall furnish to the NIMS Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of necessary to provide to such Person a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and statement containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses set forth in subclauses (i), (ii) or (iii) of this parenthetical), (xiv) and (xviii) above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Trustee shall be deemed to have been satisfied to the extent reasonably requested that substantially comparable information shall be prepared and furnished by such Fee Mortgagee the Trustee to Certificateholders pursuant to any requirements of the Code as are in order force from time to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; andtime. (Bc) reviewOn each Distribution Date, re-review and, the Trustee shall make available to the Class R Certificateholder a copy of the reports made available to the Regular Certificateholders in respect of such Distribution Date with such other information as the Trustee deems necessary or appropriate. Such obligation of the Trustee shall be deemed to have been satisfied to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any substantially comparable information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared and furnished to Class R Certificateholder by the Trustee pursuant to any requirements of the Code as from time to time in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (ABFC Asset-Backed Certificates, Series 2004-Ff1)

Statements. Tenant (a) Not later than 1:00 p.m., New York time, on the fifth Business Day prior to each Distribution Date, the Servicer shall furnish deliver to the Trustee by electronic means and to the Certificate Insurer via e-mail at ▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, a computer file containing the loan level information necessary to permit the Trustee to calculate the information required by clauses (i) through (xxvii) below as of the end of the preceding Prepayment Period or cause Due Period, as applicable, and such other information as the Trustee shall reasonably require. Not later than 4:00 p.m., New York time, three Business Days prior to each Distribution Date, the Trustee shall deliver to the Servicer, the Certificate Insurer and the Seller by telecopy, with a hard copy thereof to be delivered on the succeeding Distribution Date, a confirmation of the items in clause (i) below. Not later than each Distribution Date the Trustee shall prepare a statement (the "Remittance Report") containing the information set forth below with respect to such Distribution Date, which information shall be based upon the loan level information furnished by the following to LandlordServicer upon which the Trustee shall conclusively rely without independent verification thereof: (i) As to Available Funds and each SPE Tenant: (a) within ninety (90) days after Class' Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)related Distribution Date; (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each aggregate amount of the first three (3) Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) Certificates on such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowDistribution Date; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, distribution set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to paragraph (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including above in respect of Landlord REIT’s qualification as a REIT) interest and (iii) the amount thereof in respect of any other federalClass Interest Carryover Shortfall, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowand the amount of any Class Interest Carryover Shortfall remaining; (iv) As soon as it is prepared the amount of the distribution set forth in paragraph (i) above in respect of principal and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof amount thereof in respect of the periodic determination of the Variable Rent hereunder)Class Principal Carryover Shortfall, and any remaining Class Principal Carryover Shortfall; (v) Prompt Notice to Landlord the amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)Excess Interest paid as principal; (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costServicing Fee, the amount of depreciation Premium Amount and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement DateReimbursement Amount; (vii) Within three (3) Business Days of obtaining actual knowledge the Pool Balance as of the occurrence close of a Tenant Event of Default (or business on the last day of the occurrence preceding Due Period; (viii) the Class Principal Balance of any facts or circumstances which, with each Class of Certificates after giving effect to payments allocated to principal above; (ix) the giving of notice or Overcollateralization Amount and the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description Required Overcollateralization Amount as of the Tenant close of business on the Distribution Date, after giving effect to distributions of principal on such Distribution Date; (x) whether a Cumulative Loss Event or a Delinquency Event has occurred and is continuing and the calculation thereof; (xi) the number and Principal Balances of Default all Mortgage Loans that were the subject of Principal Prepayments during the Due Period; (xii) the amount of all Curtailments that were received during the Due Period; (xiii) the principal portion of all Monthly Payments received during the Due Period; (xiv) the interest portion of all Monthly Payments received on the Mortgage Loans during the Due Period; (xv) the amount of the Monthly Advances and the Compensating Interest payment to be made on the Determination Date; (xvi) the amount to be distributed to the Class BIO, Class P and Class R Certificateholders, respectively for the Distribution Date; (xvii) the weighted average remaining term to maturity of the Mortgage Loans and the weighted average Loan Rate as of the first day of the month prior to the Distribution Date; (xviii) the amount of all payments or such facts or circumstancesreimbursements to the Servicer pursuant to Sections 3.03(ii) and (vi); (xix) the actions Tenant has taken number of Mortgage Loans outstanding at the beginning and at the end of the related Due Period; (xx) the amount of Liquidation Loan Losses experienced during the preceding Due Period and the Cumulative Net Losses as a percentage of the Cut-Off Date Pool Balance; (xxi) as of the end of the preceding calendar month, the number and Principal Balance of Mortgage Loans which are 30-59 days delinquent; the number and Principal Balance of Mortgage Loans which are 60-89 days delinquent; the number and Principal Balance of Mortgage Loans which are 90 or shall takemore days delinquent (including the number and Principal Balance of Mortgage Loans which are in foreclosure; the number and Principal Balance of Mortgage Loans in bankruptcy; and the number and Principal Balance of Mortgage Loans which are REO Property, each separately set forth); (xxii) [Reserved]; (xxiii) the number and aggregate Principal Balance of Mortgage Loans, other than Mortgage Loans in default or imminent default, that were modified by the Servicer during the related Due Period; (xxiv) the amount of Net Rate Cap Carryover distributed to each Class of Offered Certificates, other than the Class IO Certificates, and the amount of Net Rate Cap Carryover remaining for each such Class; (xxv) for each Pre-Funding Distribution Date, the amount in the Initial Interest Coverage Account; (xxvi) for each Pre-Funding Distribution Date, the remaining amount in the Pre-Funding Account; and (xxvii) the amount of the Insured Payments, if any, to remedy be made on such Tenant Event of Default (or Distribution Date. The Trustee shall make available such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant report to the Fee Mortgage DocumentsServicer, within the applicable timeframes required thereunder)Seller, in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of Certificate Insurer, the foregoingCertificateholders, Tenant will furnishthe Rating Agencies, or cause to be furnishedBloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”▇▇▇▇ ▇▇▇▇▇▇) and Intex Solutions (at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictionsDistribution Date; provided, however, that the Trustee shall remove from the report the Premium Amount to be paid to the Certificate Insurer prior to the submission to Bloomberg and Intex Solutions. The Trustee may fully rely upon and shall have no liability with respect to information described on Exhibit M shall not be so excluded even if such provided by the Servicer. To the extent that there are inconsistencies between the telecopy of the Remittance Report and the hard copy thereof, the Servicer may rely upon the latter. In the case of information qualifies within clauses furnished pursuant to subclauses (iii), (iiiii), (iv) or and (vi) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the related Cut-Off Date. The Trustee will make the Remittance Report (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, and the parties to this Agreement via the Trustee's internet website. The Trustee's internet website shall initially be located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution options are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way Remittance Reports are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. (b) Within a reasonable period of time after the end of each calendar year, the Trustee shall furnish to each Person who at any time during the calendar year was a Holder of a Regular Certificate, if requested in writing by such Person, such information as is reasonably necessary to provide to such Person a statement containing the information set forth in subclauses (iii) and (iv) above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of this parenthetical), the Trustee shall be deemed to have been satisfied to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any substantially comparable information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in compliance with applicable federal securities lawsforce from time to time. (c) On each Distribution Date, including Regulation S-X (and for any prior periods required thereunder), if and the Trustee shall forward to the extent Class R Certificateholders a copy of the reports forwarded to the Holders of the Regular Certificates in respect of such compliance Distribution Date and a statement setting forth the amounts actually distributed to the Class R Certificateholders on such Distribution Date together with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo such other information as the Trustee deems necessary or Landlord REIT to (x) file such Financial Statementappropriate.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Delta Funding Home Equity Loan Trust 2000-4)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause prepare and post on its website at http://www.jpmorgan.com/sfr, a statement as to be furnished the following to Landlorddistributions made on ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇: (i) As the amount of the distribution made on such Distribution Date to the Holders of each SPE Tenant: Class of Certificates allocable to principal or reduction of Notional Amount, separately identified; (ii) the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to interest or Class X Distributable Amount, separately identified; (iii) the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Targeted Overcollateralization Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by the Servicer during the related Collection Period; (v) the aggregate amount of Advances for the related Collection Period; (vi) the Pool Balance and the Loan Group Balance for each Loan Group at the close of business at the end of the related Collection Period; (vii) separately stated for each Loan Group, the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) separately stated for each Loan Group, the number and aggregate unpaid principal balance of Mortgage Loans (a) within ninety 30 to 59 days past due on a contractual basis, (90b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) separately stated for each Loan Group, with respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Mortgage Loan, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) separately stated for each Loan Group, the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) separately stated for each Loan Group, the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of prepayment penalties collected (including amounts deposited in connection with the full or partial waiver of such prepayment penalties pursuant to Section 3.01) during the related Collection Period and the amounts thereof allocable to the Class N Certificates and the Class X Certificates; (xiii) separately stated for each Loan Group, the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiv) the Certificate Principal Balance, or Notional Amount, as applicable, of each Class of Certificates, after giving effect to the distributions, and allocations of Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xv) the Accrued Certificate Interest in respect of each Class of Fixed-Rate and Floating Rate Certificates for such Distribution Date, separately identifying the portions thereof attributable to Cap Carryover Amounts, and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23; (xvii) [Reserved]; (xviii) [Reserved]; (xix) the amount of the Trustee Fee paid; (xx) the Cap Carryover Amounts distributed on such Distribution Date and the portion thereof constituting Cap Carryover Amounts, the amount of all Cap Carryover Amounts covered by withdrawals from the Reserve Accounts and the amounts remaining after giving effect to distributions thereof on such Distribution Date; (xxi) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xxii) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xxiii) the Available Funds; (xxiv) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxv) the Liquidation Report for such Distribution Date; (xxvi) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer or Seller during the related Collection Period and indicating the Section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; (xxvii) the aggregate Principal Balance of the Mortgage Loans repurchased by the Servicer (or an affiliate) during the related Collection Period in connection with Section 3.16; and (xxviii) the amount of Subsequent Recoveries received during the related Prepayment Period. Parties that are unable to use http://www.jpmorgan.com/sfr are entitled to have a paper copy mailed to ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇y calling the Trustee at (877) 722-1095 and indicating such. The Trustee shall have the right to ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Mortgage Loans provided by the Servicer. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within a reasonable period of time after the end of each Fiscal Year (commencing with calendar year, the Fiscal Year ending December 31Trustee shall furnish to each Person who at any time during the calendar year was a Certificateholder of a Regular Certificate, 2017)if requested in writing by such Person, but if Guarantor such information as is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering reasonably necessary to provide to such Fiscal Year and containing Person a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after containing the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, information set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes); (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause subclauses (i), (ii), (xv) and (iii)xx) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering aggregated for such Fiscal Year and containing statement calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which Trustee shall be unqualified as deemed to scope of audit of ERI and its Subsidiaries and shall provide in substance have been satisfied to the extent that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which substantially comparable information shall be limited prepared and furnished by the Trustee to balance sheetsCertificateholders pursuant to any requirements of the Code as are in force from time to time. (c) On each Distribution Date, income statements, and statements the Trustee shall make available to the Residual Certificateholders a copy of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or the reports made available to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including Regular Certificateholders in respect of Landlord REIT’s qualification such Distribution Date with such other information as a REIT) and (iii) any other federal, state the Trustee deems necessary or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect appropriate. Such obligation of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished to Landlord no later than fifty-five (55) days following Residual Certificateholders by the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (ABFC C-Bass Mortgage Loan Asset-Backed Certificates, Series 2005-Cb2)

Statements. Tenant (a) Not later than 11:00 a.m., New York time, on the fifth Business Day prior to each Distribution Date, the Servicer shall furnish or cause deliver to the Trustee by electronic means and to the Certificate Insurer via e-mail at ▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, a computer file containing the loan level information called for by the applicable clauses (i) through (xxvii) below as of the end of the preceding Due Period and such other information as the Trustee shall reasonably require. Not later than 4:00 p.m., New York time, three Business Days prior to each Distribution Date, the Trustee shall deliver to the Servicer, , the Certificate Insurer and the Seller by telecopy, with a hard copy thereof to be delivered on the succeeding Distribution Date, a confirmation of the items in clause (i) below. Not later than each Distribution Date the Trustee shall prepare a statement (the "Remittance Report") containing the information set forth below with respect to such Distribution Date, which information shall be based upon the loan level information furnished by the following to LandlordServicer upon which the Trustee shall conclusively rely without independent verification or calculation thereof: (i) As to the Available Funds for each SPE Tenant: (a) within ninety (90) days after Certificate Group and each Class' Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)related Distribution Date; (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each aggregate amount of the first three (3) Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) Certificates on such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowDistribution Date; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, distribution set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to paragraph (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including above in respect of Landlord REIT’s qualification as a REIT) interest and (iii) the amount thereof in respect of any other federalClass Interest Carryover Shortfall, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowand the amount of any Class Interest Carryover Shortfall remaining; (iv) As soon as it is prepared the amount of the distribution set forth in paragraph (i) above in respect of principal and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof amount thereof in respect of the periodic determination of the Variable Rent hereunder)Class Principal Carryover Shortfall, and any remaining Class Principal Carryover Shortfall; (v) Prompt Notice to Landlord the amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)Excess Interest for each Loan Group paid as principal; (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costServicing Fee, the amount of depreciation Premium Amount and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement DateReimbursement Amount; (vii) Within three (3) Business Days the Loan Group Balance of obtaining actual knowledge each Loan Group and the Pool Balance, in each case as of the occurrence close of a Tenant Event of Default (or business on the last day of the occurrence preceding Due Period; (viii) the Class Principal Balance of any facts or circumstances which, with each Class of Certificates after giving effect to payments allocated to principal above; (ix) the giving of notice or Overcollateralization Amount and the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description Required Overcollateralization Amount as of the Tenant close of business on the Distribution Date, after giving effect to distributions of principal on such Distribution Date; (x) whether a Cumulative Loss Event or a Delinquency Event has occurred and is continuing and the calculation thereof; (xi) the number and Principal Balances of Default all Mortgage Loans in each Loan Group that were the subject of Principal Prepayments during the Due Period; (xii) the amount of all Curtailments in each Loan Group that were received during the Due Period; (xiii) the principal portion of all Monthly Payments in each Loan Group received during the Due Period; (xiv) the interest portion of all Monthly Payments in each Loan Group received on the Mortgage Loans during the Due Period; (xv) for each Certificate Group, the amount of the Monthly Advances and the Compensating Interest payment to be made on the Determination Date; (xvi) the amount to be distributed to the Class P, Class BIO and Class R Certificateholders, respectively for the Distribution Date; (xvii) the weighted average remaining term to maturity of the Mortgage Loans in each Loan Group and the weighted average Loan Rate as of the first day of the month prior to the Distribution Date; (xviii) the amount of all payments or such facts or circumstancesreimbursements to the Servicer pursuant to Sections 3.03(ii) and (vi); (xix) the actions Tenant has taken number of Mortgage Loans in each Loan Group outstanding at the beginning and at the end of the related Due Period; (xx) the amount of Liquidation Loan Losses experienced during the preceding Due Period and the Cumulative Net Losses as a percentage of the Cut-Off Date Pool Balance; (xxi) for each Loan Group, as of the end of the preceding calendar month, the number and Principal Balance of Mortgage Loans which are 30-59 days delinquent; the number and Principal Balance of Mortgage Loans which are 60-89 days delinquent; the number and Principal Balance of Mortgage Loans which are 90 or shall takemore days delinquent (including the number and Principal Balance of Mortgage Loans which are in foreclosure; the number and Principal Balance of Mortgage Loans in bankruptcy; and the number and Principal Balance of Mortgage Loans which are REO Property, each separately set forth); (xxii) any LIBOR Carryover distributed and any remaining LIBOR Carryover; (xxiii) for each Loan Group, the number and aggregate Principal Balance of Mortgage Loans, other than Mortgage Loans in default or imminent default, that were modified by the Servicer during the related Due Period; (xxiv) the amount of Net Rate Cap Carryover distributed to each Class in Certificate Group F, other than the Class IOF Certificates, and each Class of Subordinate Certificates and the amount of Net Rate Cap Carryover remaining for each such Class; (xxv) for each Pre-Funding Distribution Date, the amount remaining in the Initial Coverage Account; (xxvi) for each Pre-Funding Distribution Date, the remaining Allocated Pre-Funded Amount; and (xxvii) the amount of the Insured Payments, if any, to remedy be made on such Tenant Event of Default (or Distribution Date. The Trustee shall forward such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant report to the Fee Mortgage DocumentsServicer, within the applicable timeframes required thereunder)Seller, in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of Certificate Insurer, the foregoingCertificateholders, Tenant will furnishthe Rating Agencies, or cause to be furnishedBloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”▇▇▇▇ ▇▇▇▇▇▇) and Intex Solutions (at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictionsDistribution Date; provided, however, that the Trustee shall remove from the report the Premium Amount to be paid to the Certificate Insurer prior to the submission to Bloomberg and Intex Solutions. The Trustee may fully rely upon and shall have no liability with respect to information described provided by the Servicer. To the extent that there are inconsistencies between the telecopy of the Remittance Report and the hard copy thereof, the Servicer may rely upon the latter. In the case of information furnished pursuant to subclauses (ii), (iii), (iv) and (vi) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the related Cut-Off Date. The Trustee will make the Remittance Report (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, and the parties to this Agreement via the Trustee's internet website and its fax-on-demand service. The Trustee's fax-on-demand service may be accessed by calling (▇▇▇) ▇▇▇-▇▇▇▇. The Trustee's internet website shall initially be located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇". Assistance in using the website or the fax-on-demand service can be obtained by calling the Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution options are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way Remittance Reports are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. (b) Within a reasonable period of time after the end of each calendar year, the Trustee shall furnish to each Person who at any time during the calendar year was a Holder of a Regular Certificate, if requested in writing by such Person, such information as is reasonably necessary to provide to such Person a statement containing the information set forth in subclauses (iii) and (iv) above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (c) On each Distribution Date, the Trustee shall forward to the Class R Certificateholders a copy of the reports forwarded to the Holders of the Regular Certificates in respect of such Distribution Date and a statement setting forth the amounts actually distributed to the Class R Certificateholders on Exhibit M such Distribution Date together with such other information as the Trustee deems necessary or appropriate. (d) Within a reasonable period of time after the end of each calendar year, the Trustee shall deliver to each Person who at any time during the calendar year was a Class R Certificateholder, if requested in writing by such Person, such information as is reasonably necessary to provide to such Person a statement containing the information provided pursuant to the previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a Class R Certificateholder. Such obligation of the Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared by the Trustee or and furnished to Certificateholders by the Trustee pursuant to any requirements of the Code as from time to time in force. (e) The Servicer and the Trustee shall furnish to the Certificate Insurer and each Certificateholder (if requested in writing), during the term of this Agreement, such periodic, special or other reports or information, whether or not provided for herein, as shall be necessary, reasonable or appropriate with respect to the Certificateholder or otherwise with respect to the purposes of this Agreement, all such reports or information to be provided by and in accordance with such applicable instructions and directions (if requested in writing) as the Certificateholder may reasonably require; provided that the Servicer and the Trustee shall be entitled to be reimbursed by such Certificateholder for their respective fees and actual expenses associated with providing such reports, if such reports are not generally produced in the ordinary course of their respective businesses or readily obtainable. (f) Reports and computer diskettes or files furnished by the Servicer pursuant to this Agreement shall be deemed confidential and of a proprietary nature, and shall not be so excluded even if such information qualifies within clauses (i), (ii) copied or (iii) of this parenthetical), distributed except to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, law or to the extent accurate, approve (and Rating Agencies. No Person entitled to receive copies of such reports or diskettes or files or lists of Certificateholders shall use the extent inaccurate, identify information therein for the same with particularity) portions purpose of any Disclosure Document (soliciting the customers of the Seller or for any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared purpose except as set forth in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementthis Agreement.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Delta Funding Corp /De/)

Statements. Tenant (a) Two Business Days prior to the Auction Distribution Date, the Securities Administrator shall furnish or cause make available to the Auction Administrator, and concurrently with each distribution to Certificateholders, the Securities Administrator shall make available to each Certificateholder, the Seller, the Master Servicer, the Trustee, the Yield Maintenance Counterparty and the Rating Agencies, a statement based, as applicable, on loan-level information provided to it by the Master Servicer and the Servicers (the “Distribution Date Statement”) as to the distributions to be furnished made or made, as applicable, on such Distribution Date. Information in the following Distribution Date Statement relating to Landlordor based on amounts available in the Yield Maintenance Account shall be based on information provided by the Yield Maintenance Counterparty regarding any Yield Maintenance Amounts required to be paid by the Yield Maintenance Counterparty for the related Distribution Date pursuant to the Yield Maintenance Agreements. The Distribution Date Statement shall include the following: (i) As the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to principal; (ii) the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to interest; (iii) the Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage and Subordinate Prepayment Percentage with respect to each SPE Tenant: Loan Group for the following Distribution Date; (iv) the aggregate amount of servicing compensation received by each Servicer during the related Due Period; (v) the aggregate amount of Advances for the related Due Period and the amount of unreimbursed Advances; (vi) the Loan Group Balance and related Net WAC for each Loan Group at the Close of Business at the end of the related Due Period; (vii) the aggregate Principal Balance of the One-Year CMT Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (viii) the aggregate Principal Balance of the Six-Month LIBOR Indexed, One-Month LIBOR Indexed and One-Year LIBOR Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (ix) the amount of the Master Servicer Fees paid to or retained by the Master Servicer; (x) the amount of fees, expenses or indemnification amounts paid by the Trust with an identification of the general purpose of such amounts and the party receiving such amounts; (xi) for each Loan Group, the number, weighted average remaining term to maturity, weighted average life and weighted average Loan Rate of the related Mortgage Loans as of the related Due Date; (xii) the number and aggregate unpaid principal balance of Mortgage Loans, in the aggregate and for each Loan Group, (a) within ninety 30 to 59 days Delinquent, (90b) 60 to 89 days Delinquent, (c) 90 or more days Delinquent, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy, in each case as of the close of business on the last day of the preceding calendar month; (xiii) the rolling six-month delinquency rate for that Distribution Date; (xiv) the total number and cumulative principal balance of all REO Properties in each Loan Group as of the Close of Business of the last day of the preceding Due Period; (xv) the aggregate amount of Principal Prepayments and Prepayment Penalty Amounts with respect to each Loan Group made during the related Prepayment Period; (xvi) the aggregate amount of Realized Losses for each Loan Group and Recoveries incurred during the related Due Period and the cumulative amount of Realized Losses and Recoveries as of such Distribution Date; (xvii) the cumulative amount of Realized Losses for each Loan Group; (xviii) the Realized Losses and Recoveries, if any, allocated to each Class of Certificates on the related Distribution Date; (xix) the Class Certificate Principal Balance of each Class of Certificates and the Apportioned Principal Balances of the Subordinate Certificates after giving effect to any distributions made thereon, on such Distribution Date; (xx) the Interest Distributable Amount in respect of each Class of Certificates, for such Distribution Date and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xxi) the aggregate amount of any Net Interest Shortfalls and the Unpaid Interest Shortfall Amount for such Distribution Date; (xxii) the Available Funds with respect to each Loan Group; (xxiii) the Pass-Through Rate for each Class of Certificates for such Distribution Date and, through the Auction Distribution Date, the level of LIBOR used to determine the applicable Pass-Through Rate; (xxiv) the aggregate Principal Balance of Mortgage Loans purchased hereunder by the Seller or TMI during the related Due Period, and indicating the relevant section of the related Servicing Agreement, or the Section of this Agreement, as applicable, requiring or allowing the purchase of each such Mortgage Loan; (xxv) the amount of any Principal Deficiency Amounts or Accrued Interest Amounts paid to an Undercollateralized Group or amounts paid pursuant to Section 5.01(f)(i); (A) the amounts paid to each Class of Senior Certificates (other than the Class A-X-1 and Class A-X-2 Certificate) from Yield Maintenance Amounts received from the Yield Maintenance Counterparty for such period, expressed as a per annum rate and as a dollar amount, (B) the amounts paid to the Class A-X-1 and Class A-X-2 Certificates from any excess Yield Maintenance Amounts received under the related Yield Maintenance Agreement expressed as a per annum rate and as a dollar amount and (C) the Yield Maintenance Amount and applicable strike rate and on each Yield Maintenance Agreement for such Distribution Date; (xxvii) the amount of any Final Maturity Reserve Amount deposited in the Final Maturity Reserve Account, and, on the earlier of the Distribution Date in April 2036 and the termination of the Trust, the amount distributed from the Final Maturity Reserve Account to each Class of Certificates; and (xxviii) on the Auction Distribution Date, the Par Price (as defined in the Auction Administration Agreement) for each Class of Auction Certificates as reported to the Master Servicer by the Securities Administrator. The Securities Administrator will make the Distribution Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the other parties to this Agreement via the Securities Administrator’s internet website. The Securities Administrator’s internet website shall initially be located at “▇▇▇.▇▇▇▇▇▇▇.▇▇▇.” Assistance in using the website can be obtained by calling the Securities Administrator’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Securities Administrator shall have the right to change the way such reports are distributed in order to make such distribution more convenient and/or more accessible to the parties, and the Securities Administrator shall provide timely and adequate notification to all parties regarding any such change. In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-Off Date. (b) Within a reasonable period of time after the end of each Fiscal Year (commencing with calendar year, the Fiscal Year ending December 31Securities Administrator shall, 2017)upon written request, but furnish to each Person who at any time during the calendar year was a Certificateholder of a Regular Certificate, if Guarantor requested in writing by such Person, such information as is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering reasonably necessary to provide to such Fiscal Year and containing Person a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after containing the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, information set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes); (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause subclauses (i), (ii) and (iii), subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, aggregated for such calendar year or applicable portion thereof during which reconciliation shows how such Person was a Certificateholder and such other customary information which a Certificateholder reasonably requests to prepare its tax returns. Such obligation of the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant Securities Administrator shall be deemed to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), have been satisfied to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any substantially comparable information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared and furnished by the Securities Administrator to Certificateholders pursuant to any requirements of the Code as are in compliance with applicable federal securities lawsforce from time to time. (c) On each Distribution Date, including Regulation S-X (the Securities Administrator shall supply an electronic tape to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg Financial Markets, Inc. on a monthly basis, and for any prior periods required thereunder), if shall supply an electronic tape to Loan Performance and Intex Solutions in a format acceptable to the extent such compliance with federal securities laws, including Regulation S-X (Loan Performance and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial StatementIntex Solutions on a monthly basis.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Thornburg 2006-2)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer, the Trustee shall furnish or cause make available to be furnished each Holder of the following Regular Certificates, the Servicer and the Rating Agencies, a statement (the "Distribution Date Statement") as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement Class of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect Certificates allocable to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)principal; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting Class of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed Certificates allocable to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowinterest; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering the Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage and Subordinate Prepayment Percentage for such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon the aggregate amount of servicing compensation received by the Servicer during the related Due Period and such other customary information as it is prepared and in no event later than sixty (60) days after the end of each Fiscal YearTrustee deems necessary or desirable, or which a statement of Net Revenue with respect Certificateholder reasonably requests, to each Facility with respect enable Certificateholders to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any Advances for the related Due Period and the amount of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)unreimbursed Advances; (vi) [reserved]; (vii) the Special Hazard Loss Coverage Amount, the Fraud Loss Coverage Amount and the Bankruptcy Loss Coverage Amount, each as of the related Determination Date; (viii) the Net WAC; (ix) the number, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Due Date; (x) the number and aggregate unpaid principal balance of Mortgage Loans (a) 30 to 59 days Delinquent, (b) 60 to 89 days Delinquent, (c) 90 or more days Delinquent, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date; (xi) the book value of any REO Property as of the Close of Business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Due Period; (xii) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xiii) [reserved]; (xiv) the aggregate amount of Realized Losses incurred during the related Due Period and the cumulative amount of Realized Losses; (xv) the Class Certificate Principal Balance of each Class of Certificates (other than the Class X Certificates) and the Class X Certificate Notional Balance of the Class X Certificates after giving effect to any distributions made thereon on such Distribution Date; (xvi) the Interest Distributable Amount in respect of each Class of the Certificates, for such Distribution Date and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xvii) the aggregate amount of any Prepayment Interest Shortfalls and the Unpaid Interest Shortfall Amount for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.24 hereof; (xviii) the Available Funds; (xix) the Pass-Through Rate for each Class of Certificates for such Distribution Date; and (xx) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer or the Seller during the related Due Period, and indicating the Section of this Agreement requiring or allowing the purchase of each such Mortgage Loan. The Trustee will make the Distribution Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the other parties to this Agreement via the Trustee's internet website and will forward the Distribution Date Statement to each Rating Agency. The Trustee's internet website shall initially be located at "www.ctslink.com". Assistance in using the website or the fax-on-d▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇an be obtained by calling the Trustee's customer service desk at (301) 815-6600. Parties that are unable to use the above distribu▇▇▇▇ ▇▇▇▇▇▇ ▇▇e entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and requesting same. The Trustee shall have the right to change the way Distribution Date Statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all the above parties regarding any such changes. The Trustee's obligations pursuant to this Section 4.04 are limited to the extent of its receipt of all necessary information from the Servicer. The Trustee may fully rely upon and shall have no liability with respect to information provided by the Servicer. In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished by the Trustee to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Certificateholders pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as are in force from time to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementtime.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Greenwich Capital Acceptance Inc MRT Ln Ps Th CRT Sr 01 Frb1)

Statements. Tenant (a) Two Business Days prior to the Auction Distribution Date, the Securities Administrator shall furnish or cause make available to the Auction Administrator, and concurrently with each distribution to Certificateholders, the Securities Administrator shall make available to each Certificateholder, the Seller, the Master Servicer, the Trustee, the Yield Maintenance Counterparty and the Rating Agencies, a statement based, as applicable, on loan-level information provided to it by the Master Servicer and the Servicers (the “Distribution Date Statement”) as to the distributions to be furnished made or made, as applicable, on such Distribution Date. Information in the following Distribution Date Statement relating to Landlordor based on amounts available in the Yield Maintenance Account shall be based on information provided by the Yield Maintenance Counterparty regarding any Yield Maintenance Amounts required to be paid by the Yield Maintenance Counterparty for the related Distribution Date pursuant to the Yield Maintenance Agreements. The Distribution Date Statement shall include the following: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement Class of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect Certificates allocable to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)principal; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31Class of Certificates allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and including any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowRequired Reserve Fund Deposits; (iii) As the Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage and Subordinate Prepayment Percentage with respect to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow each Loan Group for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowfollowing Distribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of servicing compensation received by each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to Servicer during the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)related Due Period; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any Advances for the related Due Period and the amount of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)unreimbursed Advances; (vi) Within ten the Available Funds Cap for each Class of Senior Certificates (10other than the Class A-X Certificates) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing on such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Distribution Date; (vii) Within three (3) the Loan Group Balance and related Net WAC for each Loan Group at the Close of Business Days of obtaining actual knowledge at the end of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances)related Due Period; (viii) Such additional customary the aggregate Principal Balance of the One-Year CMT Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (ix) the aggregate Principal Balance of the Six-Month LIBOR Indexed, One-Month LIBOR Indexed and reasonable financial information One-Year LIBOR Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (x) the amount of the Master Servicer Fees paid to any Facilityor retained by the Master Servicer; (xi) the aggregate amount of Servicer Fees paid to or retained by the Servicers; (xii) the amount of fees, Tenantexpenses or indemnification amounts paid by the Trust with an identification of the general purpose of such amounts and the party receiving such amounts; (xiii) for each Loan Group, CEOCthe number, ERI weighted average remaining term to maturity, weighted average life and their Affiliates weighted average Loan Rate of the related Mortgage Loans as of the related Due Date; (xiv) the number and aggregate unpaid principal balance of Mortgage Loans, in the aggregate and for each Loan Group, (a) 30 to 59 days Delinquent, (b) 60 to 89 days Delinquent, (c) 90 or more days Delinquent, (d) as to which shall be limited to balance sheets foreclosure proceedings have been commenced and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder)e) in bankruptcy, in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord close of business on or before twenty-five (25) days after the end last day of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each preceding calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Leasethe rolling six-month delinquency rate for that Distribution Date; (xvi) The reporting/copies the total number and cumulative principal balance of Subleases made by Tenant all REO Properties in accordance with Section 22.3each Loan Group as of the Close of Business of the last day of the preceding Due Period; (xvii) Any notices or reporting required pursuant the aggregate amount of Principal Prepayments and Prepayment Penalty Amounts with respect to Article XXXII hereof or otherwise pursuant to any other provision of this Leaseeach Loan Group made during the related Prepayment Period; (xviii) The monthly reporting required pursuant to Section 4.1 hereofthe aggregate amount of Realized Losses for each Loan Group and Recoveries incurred during the related Due Period and the cumulative amount of Realized Losses and Recoveries as of such Distribution Date; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 the cumulative amount of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in Realized Losses for each case within fifteen (15) days of the receipt thereofLoan Group; (xx) On an annual basisthe Realized Losses and Recoveries, a detailed reconciliation if any, allocated to each Class of Certificates on the related Distribution Date; (xxi) the Class Certificate Principal Balance of each Class of Certificates and the Apportioned Principal Balances of the financial information being provided Subordinate Certificates after giving effect to Landlord any distributions made thereon, on such Distribution Date; (xxii) the Interest Distributable Amount in respect of each Class of Certificates, for such Distribution Date and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xxiii) the aggregate amount of any Net Interest Shortfalls and the Unpaid Interest Shortfall Amount for such Distribution Date; (xxiv) the Available Funds with respect to each Loan Group; (xxv) the Pass-Through Rate for each Class of Certificates for such Distribution Date and, through the Auction Distribution Date, the level of LIBOR used to determine the applicable Pass-Through Rate; (xxvi) the aggregate Principal Balance of Mortgage Loans purchased hereunder by the Seller or TMI during the related Due Period, and indicating the relevant section of the related Servicing Agreement, or the Section of this Agreement, as applicable, requiring or allowing the purchase of each such Mortgage Loan; (xxvii) the amount of any Principal Deficiency Amounts or Accrued Interest Amounts paid to an Undercollateralized Group or amounts paid pursuant to clause Section 5.01(f)(i); (xixxxviii) above (A) the “WH Net Revenue”amounts paid to each Class of Senior Certificates (other than the Class A-X Certificate) from Yield Maintenance Amounts received from the Yield Maintenance Counterparty for such period in reduction of any Available Funds Cap Shortfalls, expressed as a per annum rate and as a dollar amount, (B) the amounts paid to the Class A-X Certificates from the excess Yield Maintenance Amounts expressed as a per annum rate and as a dollar amount and (C) the notional balances on each Yield Maintenance Agreement for such Distribution Date; (xxix) the amount of any Unpaid Available Funds Cap Shortfall (if applicable) and the Net Revenue statements that Tenant is providing related accrued interest thereon, with respect to Landlord pursuant to clause the Class A-1, Class A-2 and Class A-3 Certificates following the distributions and allocations made in respect of such Certificates on such Distribution Date; (ivxxx) above, which reconciliation shows how the Net Revenue contained amount of any Final Maturity Reserve Amount deposited in the WH Net Revenue is being reflected Final Maturity Reserve Account, and, on the earlier of the Distribution Date in January 2036 and the termination of the Trust, the amount distributed from the Final Maturity Reserve Account to each Class of Certificates; (xxxi) on the Auction Distribution Date, the Par Price (as defined in the Net Revenue statements delivered pursuant Auction Administration Agreement) for each Class of Auction Certificates as reported to clause (iv) abovethe Master Servicer by the Securities Administrator; and (xxixxxii) In connection with any Fee Mortgagee Securitizationthe total number of Mortgage Loans in the aggregate and the aggregate Stated Principal Balance in the aggregate and separately for each of the Three-Year, Tenant shallFive-Year, upon the written request of Landlord: (A) Seven-Year and Ten-Year Hybrid Mortgage Loans, in each case at the sole cost close of business at the end of the related Due Period. The Securities Administrator will make the Distribution Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and expense of Landlord, reasonably cooperate with Landlord the other parties to this Agreement via the Securities Administrator’s internet website. The Securities Administrator’s internet website shall initially be located at “▇▇▇.▇▇▇▇▇▇▇.▇▇▇.” Assistance in providing information with respect using the website can be obtained by calling the Securities Administrator’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Securities Administrator shall have the right to change the way such reports are distributed in order to make such distribution more convenient and/or more accessible to the Leased Property or parties, and the Securities Administrator shall provide timely and adequate notification to all parties regarding any portion thereof, Tenant or its Affiliates (excluding such change. In the case of information furnished pursuant to subclauses (i) any material non-public information, and (ii) any Competitively Sensitive Informationabove, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions amounts shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material nonexpressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial StatementOff Date.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Thornburg Mortgage Securities Trust 2006-1)

Statements. Tenant shall furnish or cause to be furnished the following to Landlord: (i) As to each SPE Tenant: (a) within ninety (90) days after Concurrently with each payment to Noteholders, the end of Securities Administrator shall make available to each Fiscal Year (commencing with Noteholder, the Fiscal Year ending December 31Seller, 2017)the Master Servicer, but if Guarantor is not a reporting company under the Exchange ActIndenture Trustee, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadlinethe Depositor and the Rating Agencies, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit based, as applicable, on loan-level information provided to it by the Master Servicer and lossthe Servicer (the "Payment Date Statement") as to the payments to be made or made, a balance sheetas applicable, on such Payment Date. The Payment Date Statement shall include the following: the applicable Accrual Periods and a statement of general Payment Dates; the total cash flows received and the general sources thereof for such SPE Tenantany Loan Group; the amount, if any, of fees or expenses accrued and (b) within sixty (60) days after the end of each paid, with an identification of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with payee and the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer general purpose of such SPE Tenantfees; the amount of the related payment to holders of the Notes (by Class) allocable to principal, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes); (ii) As to CEOC: separately identifying (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement the aggregate amount of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP any Principal Prepayments included therein and (B) the aggregate of all Monthly Payments of principal included therein; the amount of such distribution to holders of the Notes (by Class) allocable to interest; the Class Principal Balance of the Notes before and after giving effect to the distribution of principal and allocation of Realized Losses on such Payment Date; the number and Scheduled Principal Balance of all the Mortgage Loans for the following Payment Date; the Note Interest Rate for each class of Notes for such Payment Date; the aggregate amount of Advances included in the payments on the Payment Date (including the general purpose of such Advances); the number and aggregate Scheduled Principal Balance of any Mortgage Loans (A) that were delinquent (exclusive of Mortgage Loans in foreclosure) using the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and "OTS" method (1) one scheduled payment, (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature two scheduled payments and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (903) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, three scheduled payments and (B) certifying as to which foreclosure proceedings have been commenced, and loss information for the period; with respect to any Mortgage Loan that such Financial Statements fairly present, in all material respectswas liquidated during the preceding calendar month, the financial position loan number and results Scheduled Principal Balance of, and Realized Loss on, such Mortgage Loan as of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each the related Prepayment Period; the total number and Principal Balance of any REO Properties included in the Loan Groups as of the first three end of the related Prepayment Period; the Senior Note Available Funds Shortfalls for the Offered Notes, if any and the amount on deposit in the Class A-X Reserve Fund; the cumulative Realized Losses for the Loan Groups through the end of the preceding month; (3a) Fiscal Quarters the number of Mortgage Loans in each Loan Group that have been modified during the related Due Period and the percentage (by Scheduled Principal Balance) of Mortgage Loans modified in each Loan Group during the related Due Period, (b) the type of modification with respect to any Mortgage Loans modified during the related Due Period in each Loan Group, the number of Mortgage Loans subject to each type of modification during the related Due Period in each Loan Group and the percentage (by Scheduled Principal Balance) of Mortgage Loans in each Loan Group subject to each type of modification during the related Due Period, (c) the number of Mortgage Loans in each Loan Group that have been modified since the Cut-off Date and the percentage (by Scheduled Principal Balance) of Mortgage Loans in each Loan Group modified in each Loan Group since the Cut-off Date, (d) the type of modification with respect to any Mortgage Loans modified since the Cut-off Date, the number of Mortgage Loans in each Loan Group subject to each type of modification since the Cut-off Date and the percentage (by Scheduled Principal Balance) of Mortgage Loans in each Loan Group subject to each type of modification since the Cut-off Date, (e) the aggregate of the portion of the Scheduled Principal Balance of the Mortgage Loans in each Loan Group forgiven during the related Due Period and aggregate of the portion of the Scheduled Principal Balance of the Mortgage Loans in each Loan Group forgiven since the Cut-off Date, (f) the delinquency status of each Fiscal Year Mortgage Loan modified since the Cut-off Date, (commencing with g) the Fiscal Quarter ending March 31number of times any Mortgage Loan has been subject to a modification, 2018(h) but if Guarantor is not a reporting company under the Exchange Actdate of the most recent modification of any Mortgage Loan in each Loan Group, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both number of modifications made on the Mortgage Loans in each Loan Group during the prior twelve months, (j) the percentage of Mortgage Loans in each Loan Group that have been modified that are Delinquent and (k) the Mortgage Rate of each Mortgage Loan that has been modified prior to and subsequent to such modification; and the three-month rolling average of the percent equivalent of a fraction, the numerator of which is the aggregate Scheduled Principal Balance of the Mortgage Loans that are 60 days or more delinquent or are in bankruptcy or foreclosure or are REO Properties, and the denominator of which is the Scheduled Principal Balances of all of the Mortgage Loans. The Securities Administrator will make the Payment Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Securityholders and the other parties to this Agreement via the Securities Act Administrator's internet website. The Securities Administrator's internet website shall initially be located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇." Assistance in using the website can be obtained by calling the Securities Administrator's customer service desk at ▇-▇▇▇-▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Securities Administrator shall have the right to change the way such reports are distributed in order to make such distribution more convenient and/or more accessible to the parties, and the Exchange ActSecurities Administrator shall provide timely and adequate notification to all parties regarding any such change. In the case of information furnished pursuant above, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to the amounts shall be filed by Landlord, PropCo 1, PropCo or Landlord REIT during expressed in a separate section of the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification report as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in dollar amount for each case Class for each $1,000 original dollar amount as of clause (i), (ii) and (iii), subject to Section 23.1(c) below;the Cut-Off Date. (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end Within a reasonable period of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount of depreciation and Securities Administrator shall, upon written request, furnish to each Person who at any improvements theretotime during the calendar year was a Noteholder, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Noteholder and such other customary information which a Securityholder reasonably requests to prepare its tax returns. Such obligation of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Securities Administrator shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished by the Securities Administrator to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Securityholders pursuant to any other provision requirements of this Lease;the Code as are in force from time to time. (xviiic) The On each Payment Date, the Securities Administrator shall supply an electronic tape to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg Financial Markets, Inc. on a monthly reporting required pursuant basis, and shall supply an electronic tape to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant Loan Performance and Intex Solutions in a format acceptable to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Loan Performance and Intex Solutions on a monthly basis. In addition to the extent relevant above, the Master Servicer shall provide a monthly loan level data file, or the Master Servicer shall make available on the Master Servicer's internet website, a monthly loan level data file (based solely on information provided by the Servicer) containing data provided to the calculation of Net Revenues hereunderMaster Servicer by the Servicer, available to those who are permitted to access the website, including the Rating Agencies. The file shall contain the fields referenced in each case within fifteen (15) days of Exhibit L. If the receipt thereof; (xx) On an annual basisServicer is no longer going to make that information available to the Master Servicer, a detailed reconciliation of Rating Agencies should be notified and be informed as to how this data will be made available to the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained Rating Agencies in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementfuture.

Appears in 1 contract

Sources: Sale and Servicing Agreement (PHH Mortgage Trust, Series 2008-Cim2)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer pursuant to Sections 3.19 and 4.04, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the Regular Certificates, the Servicer and the Rating Agencies, a statement as to the distributions made on such Distribution Date which shall include the following to Landlordinformation: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: the Overcollateralized Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency Amount (Aif any) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount (if any) for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date and the number and aggregate Stated Principal Balance of all Subsequent Mortgage Loans added during the Funding Period; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (ix) [Reserved]; (x) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses since the Closing Date and the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the cumulative amount of Subsequent Recoveries received since the Closing Date; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates, the Class B Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of each Class of Class A Certificates, each Class of Mezzanine Certificates, the Class B Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates, the Class B Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Net Prepayment Interest Shortfalls for such Distribution Date; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for each Class of Class A Certificates, each Class of Mezzanine Certificates and the Class B Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to each Class of Class A Certificates, each Class of Mezzanine Certificates, the Class B Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Class A Certificates, each Class of Mezzanine Certificates and the Class B Certificates for the immediately succeeding Distribution Date; and (xxiii) payments, if any, made under the Cap Contract; (xxiv) the amount on deposit in the Pre-Funding Accounts; and (xxv) for the distribution occurring on the Distribution Date immediately following the end of the Funding Period, the balance on deposit in the Group I Pre-Funding Account and/or the Group II Pre-Funding Account that has not been used to purchase Subsequent Group I Mortgage Loans and/or Subsequent Group II Mortgage Loans, as applicable, and that is being distributed to the related Class A Certificates as a mandatory distribution of principal, if any, on such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the Rating Agencies via the Trustee's internet website initially to be located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for Residual Certificateholder, if requested in writing by such Person, a statement containing the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Financial Asset Securities Corp First Franklin Mortgage Loan Trust 2004-Ffh3)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) Within ten (10) the Pool Balance at the Close of Business Days after at the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Daterelated Due Period; (vii) Within three (3) Business Days of obtaining actual knowledge the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the occurrence of a Tenant Event of Default (or Mortgage Loans as of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances)related Determination Date; (viii) Such additional customary the number and reasonable financial information related aggregate unpaid principal balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to any Facility59 days, Tenant(2) 60 to 89 days and (3) 90 or more days, CEOC(B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, ERI (2) 60 to 89 days and their Affiliates which shall be limited (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to balance sheets 59 days, (2) 60 to 89 days and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, 3) 90 or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder)more days, in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord Close of Business on or before twenty-five (25) days after the end last day of each the calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during preceding such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; Distribution Date and (CD) PACE reports, in the form attached hereto as Exhibit IREO Properties; (ix) The compliance certificates, as and when required pursuant to Section 4.3;[reserved] (x) The Annual Capital Budget the total number and cumulative principal balance of all REO Properties as and when required in Section 10.5(d)of the Close of Business of the last day of the preceding Prepayment Period; (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c)the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) Together with the monthly reporting required pursuant to aggregate amount of Realized Losses incurred during the preceding clause (xi), an updated rent roll related Prepayment Period and a summary the cumulative amount of all leasing activity then taking place at each FacilityRealized Losses; (xiii) Operating budget the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relatesDistribution Date; (xiv) Within five (5) Business Days the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates and the Class C Certificates, after request (or as soon thereafter as may be reasonably possible), giving effect to the distributions made on such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by LandlordDistribution Date; (xv) The quarterly reporting the Monthly Interest Distributable Amount in respect of Bookings required pursuant each Class of Class A Certificates, each Class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to Section 22.7 of this Leasethe Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date; (xvi) The reporting/copies the aggregate amount of Subleases made any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by Tenant in accordance with payments by the Servicer pursuant to Section 22.33.26; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Leasethe Credit Enhancement Percentage for such Distribution Date; (xviii) The monthly reporting required pursuant to Section 4.1 hereofthe Net WAC Rate Carryover Amount for the Class A Certificates and the Mezzanine Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenantany Overcollateralization Target Amount, ERI or any direct or indirect subsidiary of ERI Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the extent relevant to the calculation distribution of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereofprincipal on such Distribution Date; (xx) On an annual basiswhen the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to each Class of Class A Certificates, a detailed reconciliation each Class of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Mezzanine Certificates and the Net Revenue statements that Tenant is providing Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to Landlord pursuant to clause (iv) above, which reconciliation shows how each Class of Class A Certificates and each Class of Mezzanine Certificates for the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) aboveimmediately succeeding Distribution Date; and (xxixxiii) In connection with [reserved] The Trustee will make such statement (and, at its option, any Fee Mortgagee Securitization, Tenant shall, upon additional files containing the written request of Landlordsame information in an alternative format) available each month to Certificateholders and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at "▇▇▇▇▇: //▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇▇/invr". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (A800) at 735-7777. Parties that are unable to use the sole cost above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and expense of Landlord, reasonably cooperate with Landlord indicating such. The Trustee shall have the right to change the way such statements are distributed in providing information with respect order to make such distribution more convenient and/or more accessible to the Leased Property above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any portion thereof, Tenant or information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its Affiliates reasonable discretion (excluding without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) any material non-public information, (ii) any Competitively Sensitive Information, and through (iii) any information subject to bona fide confidentiality restrictions; providedabove, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions amounts shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material nonexpressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementoff Date.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Fremont Home Loan Trust 2003-3 Asset Backed Certs)

Statements. Tenant (a) On each Distribution Date, based on the Mortgage Loan information contained in the Remittance Report, the Securities Administrator shall furnish or cause to be furnished prepare and post on its website at www.ctslink.com, a statement (the following to Landlord"Distribution Date Statement") as t▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Certificates allocable to principal, separately identified and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, distribution made on such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, Distribution Date to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, Class P Certificates allocable to normal year-end audit adjustments and the absence of footnotes)Prepayment Charges; (ii) As the amount of the distribution made on such Distribution Date to CEOC:the Holders of each Class of Certificates allocable to interest or Class CE Distributable Amount, separately identified; (Aiii) annual financial statements audited the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Targeted Overcollateralization Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by CEOC’s Accountant the Servicer during the related Collection Period; (v) the aggregate amount of Advances for the related Collection Period, cumulative unreimbursed Advances and Servicing Advances and cumulative Nonrecoverable Advances; (vi) the Pool Balance, at the close of business at the end of the related Collection Period; (vii) the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans (a) 30 to 59 days past due on a contractual basis, (b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in accordance bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) with GAAP covering respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Fiscal Year Mortgage Loan, the unpaid Principal Balance of the REO Property as of the close of business on the last Business Day of such calendar month and containing statement the Principal Balance of profit such Mortgage Loan as of the date it became an REO Property; (x) the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and losscumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) separately stated for each Loan Group, a balance sheetthe aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) separately stated for each Loan Group, the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiii) the Principal Balance of each Class of Certificates, after giving effect to the distributions, and statement allocations of cash flows Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xiv) the Accrued Certificate Interest in respect of each Class of Certificates for CEOCsuch Distribution Date and any related Cap Carryover Amounts, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results respective portions thereof, if any, remaining unpaid following the distributions made in respect of their operations such Certificates on such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23; (xvi) the amount of the Securities Administrator Fee paid; (xvii) the Cap Carryover Amounts distributed on such Distribution Date, the amounts remaining after giving effect to distributions thereof on such Distribution Date and cash flow the amount of all Cap Carryover Amounts covered by withdrawals from the Reserve Account on such Distribution Date; (xviii) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xix) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xx) the Available Funds; (xxi) the Pass-Through Rate for each Class of Certificates for such Distribution Date; (xxii) the periods indicated information contained in conformity with GAAP the Liquidation Report for such Distribution Date; (xxiii) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer or the Depositor during the related Prepayment Period and indicating the section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; (Bxxiv) that the audit aggregate Principal Balance of the Mortgage Loans repurchased by such Accountant the Depositor during the related Prepayment Period in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadlineSection 3.16; (Bxxv) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadlineCredit Risk Manager Fee paid; and (Cxxvi) the Mortgage Loan identifying number of each Mortgage Loan with a Prepayment Charge that was the subject of a Principal Prepayment in full during the related Collection Period, the Prepayment Charge listed on each related Mortgage Note and the Prepayment Charge collected, the Servicer Prepayment Charge Payment Amount paid by the Servicer or the Originator Prepayment Charge Payment Amount paid by the Originator with respect to each such additional information Mortgage Loan. Assistance in using the Securities Administrator's website can be obtained by calling the Securities Administrator's customer service desk at (301) 815-6600. Parties that are unable to use the above distribution ▇▇▇▇▇▇ ▇▇▇ ▇▇titled to have a paper copy mailed to them via first class mail by calling the customer service desk and unaudited quarterly financial information concerning indicating such. The Securities Administrator shall have the Leased Property and Tenant, which information shall be limited right to balance sheets, income statementschange the way such reports are distributed in order to make such distribution more convenient and/or more accessible to the parties, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act Administrator shall provide timely and adequate notification to all parties regarding any such change. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed Mortgage Loans provided by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) Servicer. In the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause information furnished pursuant to subclauses (i), (ii) and (iii)xiii) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant the amounts shall be expressed in accordance with GAAP covering such Fiscal Year and containing statement a separate section of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope a dollar amount for each Class for each $1,000 original dollar amount as of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and Cut-off Date. (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end Within a reasonable period of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Securities Administrator shall furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of necessary to provide to such Person a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and statement containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses set forth in subclauses (i), (ii) or (iii) of this parenthetical), (xiv) and (xvii) above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Securities Administrator shall be deemed to have been satisfied to the extent reasonably requested that substantially comparable information shall be prepared and furnished by such Fee Mortgagee the Securities Administrator to Certificateholders pursuant to any requirements of the Code as are in order force from time to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; andtime. (Bc) reviewOn each Distribution Date, re-review and, the Securities Administrator shall forward to the Class R Certificateholder a copy of the reports forwarded to the Regular Certificateholders in respect of such Distribution Date with such other information as the Securities Administrator deems necessary or appropriate. Such obligation of the Securities Administrator shall be deemed to have been satisfied to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any substantially comparable information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared and furnished to Class R Certificateholder by the Securities Administrator pursuant to any requirements of the Code as from time to time in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Wells Fargo Asset Securities Corp)

Statements. Tenant (a) Not later than 1:00 p.m., New York time, on the fifth Business Day prior to each Distribution Date, the Servicer shall furnish deliver to the Trustee by electronic means and to the Certificate Insurer via e-mail at ▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, a computer file containing the loan level information necessary to permit the Trustee to calculate the information required by clauses (i) through (xxvii) below as of the end of the preceding Prepayment Period or cause Due Period, as applicable, and such other information as the Trustee shall reasonably require, and the Seller hereby agrees to provide the Trustee and the Servicer with an amended Prepayment Charge Schedule, if required, at such time. Not later than each Distribution Date the Trustee shall prepare a statement (the "Remittance Report") containing the information set forth below with respect to such Distribution Date, which information shall be based upon the loan level information furnished by the following to LandlordServicer upon which the Trustee shall conclusively rely without independent verification thereof: (i) As to Available Funds and each SPE Tenant: (a) within ninety (90) days after Class' Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)related Distribution Date; (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each aggregate amount of the first three (3) Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) Certificates on such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowDistribution Date; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, distribution set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to paragraph (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including above in respect of Landlord REIT’s qualification as a REIT) interest and (iii) the amount thereof in respect of any other federalClass Interest Carryover Shortfall, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowand the amount of any Class Interest Carryover Shortfall remaining; (iv) As soon as it is prepared the amount of the distribution set forth in paragraph (i) above in respect of principal and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof amount thereof in respect of the periodic determination of the Variable Rent hereunder)Class Principal Carryover Shortfall, and any remaining Class Principal Carryover Shortfall; (v) Prompt Notice to Landlord the amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)Excess Interest paid as principal; (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costServicing Fee, the amount of depreciation Premium Amount and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement DateReimbursement Amount; (vii) Within three (3) Business Days of obtaining actual knowledge the Pool Balance as of the occurrence close of a Tenant Event of Default (or business on the last day of the occurrence preceding Due Period; (viii) the Class Principal Balance of any facts or circumstances which, with each Class of Certificates after giving effect to payments allocated to principal above; (ix) the giving of notice or Overcollateralization Amount and the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description Required Overcollateralization Amount as of the Tenant close of business on the Distribution Date, after giving effect to distributions of principal on such Distribution Date; (x) whether a Cumulative Loss Event or a Delinquency Event has occurred and is continuing and the calculation thereof; (xi) the number and Principal Balances of Default all Mortgage Loans that were the subject of Principal Prepayments during the Due Period; (xii) the amount of all Curtailments that were received during the Due Period; (xiii) the principal portion of all Monthly Payments received during the Due Period; (xiv) the interest portion of all Monthly Payments received on the Mortgage Loans during the Due Period; (xv) the amount of the Monthly Advances and the Compensating Interest payment to be made on the Determination Date; (xvi) the amount to be distributed to the Class P Certificates, Class BIO and Class R Certificateholders, respectively for the Distribution Date; (xvii) the weighted average remaining term to maturity of the Mortgage Loans and the weighted average Loan Rate as of the first day of the month prior to the Distribution Date; (xviii) the amount of all payments or such facts or circumstancesreimbursements to the Servicer pursuant to Sections 3.03(ii) and (vi); (xix) the actions Tenant has taken number of Mortgage Loans outstanding at the beginning and at the end of the related Due Period; (xx) the amount of Liquidation Loan Losses experienced during the preceding Due Period and the Cumulative Net Losses as a percentage of the Cut-Off Date Pool Balance; (xxi) as of the end of the preceding calendar month, the number and Principal Balance of Mortgage Loans which are 30-59 days delinquent; the number and Principal Balance of Mortgage Loans which are 60-89 days delinquent; the number and Principal Balance of Mortgage Loans which are 90 or shall takemore days delinquent (including the number and Principal Balance of Mortgage Loans which are in foreclosure; the number and Principal Balance of Mortgage Loans in bankruptcy; and the number and Principal Balance of Mortgage Loans which are REO Property, each separately set forth); (xxii) [Reserved]; (xxiii) the number and aggregate Principal Balance of Mortgage Loans, other than Mortgage Loans in default or imminent default, that were modified by the Servicer during the related Due Period; (xxiv) the amount of Net Rate Cap Carryover distributed to each Class of Offered Certificates and the amount of Net Rate Cap Carryover remaining for each such Class; and (xxv) [Reserved]; (xxvi) [Reserved]; (xxvii) the amount of the Insured Payments, if any, to remedy be made on such Tenant Event of Default (or Distribution Date. The Trustee shall make available such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant report to the Fee Mortgage DocumentsServicer, within the applicable timeframes required thereunder)Seller, in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of Certificate Insurer, the foregoingCertificateholders, Tenant will furnishthe Rating Agencies, or cause to be furnishedBloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”▇▇▇▇ ▇▇▇▇▇▇) and Intex Solutions (at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictionsDistribution Date; provided, however, that the Trustee shall remove from the report the Premium Amount to be paid to the Certificate Insurer prior to the submission to Bloomberg and Intex Solutions. The Trustee may fully rely upon and shall have no liability with respect to information described provided by the Servicer. In the case of information furnished pursuant to subclauses (ii), (iii), (iv) and (vi) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the related Cut-Off Date. The Trustee will make the Remittance Report (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, and the parties to this Agreement via the Trustee's internet website. The Trustee's internet website shall initially be located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution options are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way Remittance Reports are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on Exhibit M but shall not be so excluded even responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Remittance Report and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party hereto). (b) Within a reasonable period of time after the end of each calendar year, the Trustee shall furnish to each Person who at any time during the calendar year was a Holder of a Regular Certificate, if requested in writing by such Person, such information qualifies within clauses (i), (ii) or as is reasonably necessary to provide to such Person a statement containing the information set forth in subclauses (iii) and (iv) above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of this parenthetical), the Trustee shall be deemed to have been satisfied to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any substantially comparable information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in compliance with applicable federal securities lawsforce from time to time. (c) On each Distribution Date, including Regulation S-X (and for any prior periods required thereunder), if and the Trustee shall forward to the extent Class R Certificateholders a copy of the reports forwarded to the Holders of the Regular Certificates in respect of such compliance Distribution Date and a statement setting forth the amounts actually distributed to the Class R Certificateholders on such Distribution Date together with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo such other information as the Trustee deems necessary or Landlord REIT to (x) file such Financial Statementappropriate.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Renaissance Home Equity Loan Asset-BKD Cert Series 2002-1)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause prepare and post on its website at www.etrustee.net and forward by mail to be furnished each Holder of the following Regular Cert▇▇▇▇▇▇▇▇, ▇ ▇▇▇▇ement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Certificates allocable to principal or reduction of Notional Amount, separately identified and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, distribution made on such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, Distribution Date to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC:the Holders of each Class of Certificates allocable to interest or Class CE Distributable Amount, separately identified; (Aiii) annual financial statements audited the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Overcollateralization Target Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year the Servicer during the related Collection Period and containing statement accrued and unpaid Special Servicing Fees; (v) the aggregate amount of profit and loss, a balance sheet, and statement of cash flows Advances for CEOC, together with the related Collection Period; (1vi) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as Pool Balance at the dates indicated and the results close of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after business at the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadlinerelated Collection Period; (Bvii) quarterly unaudited financial statementsthe number, consisting weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans (a) 30 to 59 days past due on a statement contractual basis, (b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of profit and loss, a balance sheet, and statement the close of cash flows for CEOC, together with a certificate, executed by business on the chief financial officer or treasurer last day of CEOC the calendar month preceding such Distribution Date; (Aix) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying to any Mortgage Loan that such Financial Statements fairly present, in all material respectsbecame an REO Property during the preceding calendar month, the financial position and results loan number of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments such Mortgage Loan, the unpaid principal balance and the absence Principal Balance of footnotes), all such Mortgage Loan as of which shall be provided the date it became an REO Property; (x) within sixty the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (60xi) days after the end aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiii) the Certificate Principal Balance, or Notional Amount, as applicable, of each Class of Certificates, after giving effect to the distributions, and allocations of Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xiv) the Accrued Certificate Interest in respect of each Class of Certificates for such Distribution Date, separately identifying the portions thereof attributable to Cap Carryover Amounts, and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23; (xvi) the amount of the first three Trustee Fee paid; (3xvii) Fiscal Quarters the Cap Carryover Amounts distributed on such Distribution Date and the amounts remaining after giving effect to distributions thereof on such Distribution Date; (xviii) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xix) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xx) the Available Funds; (xxi) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxii) the information contained in the Liquidation Report for such Distribution Date; (xxiii) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer or Seller during the related Collection Period and indicating the Section of this Agreement requiring or allowing the purchase of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadlinesuch Mortgage Loan; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (ixxiv) the SEC under both aggregate Principal Balance of the Securities Act and Mortgage Loans repurchased by the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo Servicer (or Landlord REIT an affiliate) during the Term of this Lease, (ii) related Collection Period in connection with Section 3.16. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each Mortgage Loans provided by the Servicer. In the case of clause information furnished pursuant to subclauses (i), (ii) and (iii)xiii) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant the amounts shall be expressed in accordance with GAAP covering such Fiscal Year and containing statement a separate section of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope a dollar amount for each Class for each $1,000 original dollar amount as of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and Cut-off Date. (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end Within a reasonable period of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of necessary to provide to such Person a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and statement containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses set forth in subclauses (i), (ii) or (iii) of this parenthetical), (xiv) and (xvii) above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Trustee shall be deemed to have been satisfied to the extent reasonably requested that substantially comparable information shall be prepared and furnished by such Fee Mortgagee the Trustee to Certificateholders pursuant to any requirements of the Code as are in order force from time to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; andtime. (Bc) reviewOn each Distribution Date, re-review and, the Trustee shall forward to the Residual Certificateholders a copy of the reports forwarded to the Regular Certificateholders in respect of such Distribution Date with such other information as the Trustee deems necessary or appropriate. Such obligation of the Trustee shall be deemed to have been satisfied to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any substantially comparable information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared and furnished to Residual Certificateholders by the Trustee pursuant to any requirements of the Code as from time to time in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Abfc Asset Backed Certificates Series 2002-Sb1)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Master Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the NIMS Insurer, the Master Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Master Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Master Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (ix) [reserved]; (x) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Master Servicer pursuant to Section 3.26; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for the Offered Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Pass- Through Rate applicable to the Offered Certificates for the immediately succeeding Distribution Date; (xxiii) (A) the amount of payments received related to claims under the PMI Policy during the related Prepayment Period (and the number of Mortgage Loans to which such payments related) and (B) the cumulative amount of payments received related to claims under the PMI Policy since the Closing Date (and the number of Mortgage Loans to which such payments related); (A) the dollar amount of claims made under the PMI Policy that were denied during the Prepayment Period (and the number of Mortgage Loans to which such denials related) and (B) the dollar amount of the cumulative claims made under the PMI Policy that were denied since the Closing Date (and the number of Mortgage Loans to which such denials related); and (xxv) the amount on deposit in the Reserve Fund. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the NIMS Insurer and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (301) 815-6600. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to the NIMS Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required that substantially comparable information shall be prepared and furnished by Section 31.3. Without limitation the Trustee to Certificateholders pursuant to any requirements of the foregoing, Tenant will furnish, or cause Code as are in force from time to be furnished, to Landlord on or before twenty-five time. (25c) days Within a reasonable period of time after the end of each calendar month year, the following items Trustee shall deliver to the NIMS Insurer and each Person who at any time during the calendar year was a Class R Certificateholder, if requested in writing by such Person, such information as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Class R Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Option One Mortgage Loan Tr 2002-1 as-BCKD Cert Ser 2002-1)

Statements. Tenant (a) Not later than 5:00 p.m. one Business Day prior to each Payment Date, the Master Servicer shall furnish or cause make available to the Indenture Trustee and the Yield Maintenance Counterparty, and concurrently with each distribution to Securityholders, the Master Servicer shall make available to each Securityholder, the Seller, the Owner Trustee and each Rating Agency, a statement based solely on loan-level information provided to it by the Servicers (the “Payment Date Statement”) as to the distributions to be furnished made or made, as applicable, on such Payment Date. Information in the following Payment Date Statement relating to Landlordor based on amounts available in the Yield Maintenance Account shall be based on information provided by the Yield Maintenance Counterparty regarding any required Net Yield Maintenance Payments to be made by the Issuer or any Net Yield Maintenance Amounts or Yield Maintenance Amounts required to be paid by the Yield Maintenance Counterparty for the related Payment Date pursuant to the Yield Maintenance Agreements. The Indenture Trustee shall confirm to the Master Servicer receipt of any Net Yield Maintenance Amounts or Yield Maintenance Amounts in the Yield Maintenance Account on the Business Day immediately preceding such Payment Date. The Payment Date Statement will include the following: (i) As the aggregate amount of the payment to each SPE Tenant: (a) within ninety (90) days after be made on such Payment Date to the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement Class of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statementsNotes, to the extent required as an Additional Fee Mortgagee Requirementapplicable, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, allocable to normal year-end audit adjustments and the absence of footnotes)principal; (ii) As the aggregate amount of the payment to CEOC:be made on such Payment Date to the Holders of each Class of Notes allocable to interest and the calculation thereof; (iii) the amount, if any, of any distribution to the Holders of the Trust Certificate; (A) annual financial statements audited the aggregate amount of any Monthly Advances required to be made by CEOC’s Accountant in accordance or on behalf of the Servicers (or the Master Servicer) with GAAP covering respect to such Fiscal Year and containing statement Payment Date, (B) the aggregate amount of profit and loss, a balance sheetsuch Monthly Advances actually made, and statement of cash flows for CEOC(C) the amount, together with (1) a report thereon if any, by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and above exceeds (B) that above; (v) the audit by such Accountant total number of Mortgage Loans in connection with such Financial Statements has been made the aggregate and the aggregate Scheduled Principal Balance in accordance with GAAP the aggregate and (2) a certificateseparately for each of the Three-Year, executed by Five-Year, Seven-Year and Ten-Year Hybrid Mortgage Loans, in each case at the chief financial officer or treasurer close of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after business at the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under related Due Period and the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadlineNet Funds Cap for such Payment Date; (Bvi) quarterly unaudited financial statementsthe Class Principal Amount of each Class of Notes, consisting to the extent applicable, as of a statement such Payment Date after giving effect to payments allocated to principal reported under clause (i) above, separately identifying any reduction of profit and loss, a balance sheet, and statement any of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer foregoing Note Principal Amounts due to Applied Loss Amounts; (vii) the amount of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken Realized Losses incurred with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, to the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided Mortgage Loans (x) within sixty in the applicable Prepayment Period and (60y) in the aggregate since the Cut-off Date; (viii) the amount of the Master Servicing Fees, Servicing Fees and Indenture Trustee Fees, if any, paid during the Due Period to which such distribution relates; (ix) the number and aggregate Scheduled Principal Balance of Mortgage Loans, (a) delinquent 30 to 59 days after on a contractual basis, (b) delinquent 60 to 89 days on a contractual basis, (c) delinquent 90 or more days on a contractual basis, (d) as to which foreclosure proceedings have been commenced in the end month in which such Payment Date occurs, in each case as of the close of business on the last Business Day of the calendar month immediately preceding, (e) in bankruptcy and (f) that are REO Properties; (x) the aggregate Scheduled Principal Balance of any Mortgage Loans with respect to which the related Mortgaged Property became a REO Property as of the close of business on the last Business Day of the calendar month immediately preceding the month in which such Payment Date occurs; (xi) with respect to substitution of Mortgage Loans in the preceding calendar month, the Scheduled Principal Balance of each of the first three (3) Fiscal Quarters Deleted Mortgage Loan, and of each Fiscal Year Qualified Substitute Mortgage Loan; (commencing xii) the aggregate outstanding Deferred Amounts, Carryforward Interest, Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls, if any, for each Class of Notes, after giving effect to payments made on such Payment Date; (xiii) the Note Interest Rate applicable to such Payment Date with respect to each Class of Notes; (xiv) the Fiscal Quarter ending March 31Interest Remittance Amount and the Principal Remittance Amount applicable to such Payment Date; (xv) the Monthly Excess Interest and Monthly Excess Cashflow for such Payment Date; (xvi) the Overcollateralization Amount, 2018) but the Overcollateralization Deficiency, if Guarantor is not a reporting company under any, the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadlinePrincipal Payment Amount and the Extra Principal Payment Amount for such Payment Date; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (ixvii) the SEC under both level of LIBOR and any Net Yield Maintenance Payments being made by the Securities Act Issuer expressed as a dollar amount and as a per annum rate which reduced the Net Funds Cap and any Net Yield Maintenance Amounts and Yield Maintenance Amounts being paid by the Yield Maintenance Counterparty for such period and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during notional balances on each Yield Maintenance Agreement for such Payment Date. In the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause information furnished pursuant to subclauses (i), (ii) and (iii)vi) above, subject the amounts shall also be expressed as a dollar amount per $1,000 of original principal amount of Notes. The Master Servicer will make the Payment Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Section 23.1(cSecurityholders and the other parties to this Agreement via the Master Servicer’s internet website. The Master Servicer’s internet website shall initially be located at “▇▇▇.▇▇▇▇▇▇▇.▇▇▇.” Assistance in using the website can be obtained by calling the Master Servicer’s customer service desk at (▇▇▇) below; (iii) As ▇▇▇-▇▇▇▇. Parties that are unable to ERI: (A) annual financial statements audited use the above distribution option are entitled to have a paper copy mailed to them via first class mail by ERI’s Accountant calling the customer service desk and indicating such. The Master Servicer shall have the right to change the way such reports are distributed in accordance with GAAP covering order to make such Fiscal Year and containing statement of profit and loss, a balance sheetdistribution more convenient and/or more accessible to the parties, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and Master Servicer shall provide in substance that (a) timely and adequate notification to all parties regarding any such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and change. (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end Within a reasonable period of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount of depreciation and Indenture Trustee shall, upon written request, furnish to each Person who at any improvements theretotime during the calendar year was a Securityholder, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as necessary to provide to such Person a statement containing aggregate payment information necessary to enable Holders of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge Securities to prepare their tax returns. Such obligation of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Indenture Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished by the Indenture Trustee to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Securityholders pursuant to any other provision requirements of this Lease;the Code as are in force from time to time. (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xxc) On each Payment Date, the Master Servicer shall supply an annual electronic tape to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg Financial Markets, Inc. on a monthly basis, and shall supply an electronic tape to Loan Performance and Intex Solutions in a detailed reconciliation of the financial information being provided format acceptable to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Loan Performance and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described Intex Solutions on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementmonthly basis.

Appears in 1 contract

Sources: Sale and Servicing Agreement (Structured Asset Sec Corp Thornburg Mort Sec Trust 2003 6)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on loan-level information provided to it by the Master Servicer, the Trustee shall furnish or cause make available to be furnished each Holder of the following Regular Certificates, the Seller, the Master Servicer and the Rating Agency, a statement (the "DISTRIBUTION DATE STATEMENT") as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement Class of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect Certificates allocable to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)principal; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting Class of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed Certificates allocable to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowinterest; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year the Pro Rata Senior Percentage, Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow Subordinate Prepayment Percentage for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowfollowing Distribution Date; (iv) As soon the aggregate amount of servicing compensation received by each Servicer during the related Due Period and such other customary information as it is prepared and in no event later than sixty (60) days after the end of each Fiscal YearTrustee deems necessary or desirable, or which a statement of Net Revenue with respect Certificateholder reasonably requests, to each Facility with respect enable Certificateholders to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any Advances for the related Due Period and the amount of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)unreimbursed Advances; (vi) the Special Hazard Loss Coverage Amount, the Fraud Loss Coverage Amount and the Bankruptcy Loss Coverage Amount, each as of the related Determination Date; (vii) the Pool Balance and Net WAC for all Mortgage Loans at the Close of Business at the end of the related Due Period; (viii) the aggregate Principal Balance of the Six-Month CMT Indexed, One-Year CMT Indexed and Five-Year CMT Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (ix) the aggregate Principal Balance of the Six-Month LIBOR Indexed, One-Month LIBOR Indexed and One-Year LIBOR Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (x) the amount of the Master Servicing Fees and Servicing Fees, if any; (xi) the number, weighted average remaining term to maturity and weighted average Loan Rate of the Mortgage Loans as of the related Due Date; (xii) the number and aggregate unpaid principal balance of Mortgage Loans (a) 30 to 59 days Delinquent, (b) 60 to 89 days Delinquent, (c) 90 or more days Delinquent, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy, in each case as of the close of business on the last day of the preceding calendar month; (xiii) the book value of any REO Property as of the Close of Business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Due Period; (xiv) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xv) the aggregate amount of Realized Losses incurred during the related Due Period and the cumulative amount of Realized Losses; (xvi) the Class Certificate Principal Balance of each Class of Certificates (other than the Class LTA-R Certificate) after giving effect to any distributions made thereon, on such Distribution Date; (xvii) the Interest Distributable Amount in respect of each Class of Certificates, for such Distribution Date and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xviii) the aggregate amount of any Prepayment Interest Shortfalls and the Unpaid Interest Shortfall Amount for such Distribution Date, to the extent not covered by payments by the Servicers pursuant to the applicable terms of their respective Servicing Agreements or the Master Servicer; (xix) the Available Funds; (xx) the Pass-Through Rate for each Class of Certificates for such Distribution Date; (xxi) any amounts distributed to the Class LTA-R Certificates; and (xxii) the aggregate Principal Balance of Mortgage Loans purchased hereunder by the Seller during the related Due Period, and indicating the relevant section of the related Servicing Agreement, or the Section of this Agreement, as applicable, requiring or allowing the purchase of each such Mortgage Loan. The Trustee will make the Distribution Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the other parties to this Agreement via the Trustee's internet website and its fax-on-demand service and will forward the Distribution Date Statement to the Rating Agency. The Trustee's internet website shall initially be located at "▇▇▇▇://▇▇▇-▇▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇- ▇▇▇▇.▇▇▇/▇▇▇▇". Parties that are unable to use the above distribution options are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and requesting same. The Trustee shall have the right to change the way Distribution Date Statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all the above parties regarding any such changes. The Trustee's obligations pursuant to this Section 4.04 are limited to the extent of its receipt of all necessary information from the Master Servicer. The Trustee may fully rely upon and shall have no liability with respect to information provided by the Master Servicer. In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-Off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation a Regular Certificate, if requested in writing by such Person, such information as is reasonably necessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) and (xxi) above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any improvements theretorequirements of the Code as are in force from time to time. (c) On each Distribution Date, substantially the Trustee shall supply an electronic tape to Bloomberg Financial Markets, Inc. in the form attached hereto as Exhibit Da format acceptable to Bloomberg Financial Markets, Inc. on a monthly basis, and such additional customary and reasonable financial shall supply an electronic tape to Mortgage Information Corporation in a format acceptable to Mortgage Information Corporation on a monthly basis. On each Distribution Date, the Master Servicer shall provide the Trustee the following information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with each Mortgage Loan (the fixed asset methodology for propco-opco separation used "REMITTANCE REPORT"): (i) the Mortgage Loan identifying number; (ii) [reserved]; (iii) the current Loan Rate as of the Commencement Dateend of the related Due Period; (iv) the related Servicing Fee Rate; (v) the current Monthly Payment due as of the end of the related Due Period; (vi) the next scheduled Due Date as of the end of the related Due Period; (vii) Within three (3) Business Days of obtaining actual knowledge the next Adjustment Date of the occurrence of a Tenant Event of Default (or Mortgage Loan as of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description end of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall takerelated Due Period, if any, to remedy such Tenant Event of Default (or such facts or circumstances)applicable; (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any the Stated Principal Balance of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant Mortgage Loan immediately prior to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit Irelated Due Period; (ix) The compliance certificates, the Stated Principal Balance of the Mortgage Loan as and when required pursuant to Section 4.3of the end of the related Due Period; (x) The Annual Capital Budget as and when required in Section 10.5(d)[reserved]; (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c)the aggregate of all interest received on the Mortgage Loan, including Advances; (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility[reserved]; (xiii) Operating budget for each SPE Tenant for each Fiscal Yearthe aggregate of all scheduled principal payments received on the Mortgage Loans, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relatesincluding Advances; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by LandlordPrincipal Prepayments in part; (xv) The quarterly reporting Principal Prepayments in respect of Bookings required pursuant to Section 22.7 of this Leasefull; (xvi) The reporting/copies the delinquency status of Subleases made by Tenant in accordance with Section 22.3the Mortgage Loan (i.e., 0, 30, 60, 90+ days Delinquent); (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease[reserved]; (xviii) The monthly reporting required pursuant an indication as to Section 4.1 hereofwhether the Mortgage Loan is in foreclosure; (xix) Semi-annual property-level betting & gaming revenue information received pursuant an indication as to Section 10.2 of whether the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereofrelated Mortgaged Property has become an REO Property; (xx) On an annual basis, a detailed reconciliation the date of bankruptcy of the financial information being provided to Landlord pursuant to clause Mortgagor, if any; (xixxxi) above the date of foreclosure, if any; (xxii) the “WH date on which the related Mortgaged Property became an REO Property; (xxiii) for each Mortgage Loan for which a Liquidation Event has occurred, whether such Mortgage Loan (i) has been paid in full, (ii) is a Liquidated Mortgage Loan or (iii) has been repurchased or replaced; (xxiv) [reserved]; (xxv) the Stated Principal Balance of the Mortgage Loan on the date on which a Liquidation Event occurs; (xxvi) Liquidation Proceeds; (xxvii) Net Revenue”Liquidation Proceeds; (xxviii) and Realized Losses; (xxix) Net Prepayment Interest Shortfalls; (xxx) Relief Act Reductions; (xxxi) the Net Revenue statements that Tenant is providing to Landlord pursuant to clause aggregate of all scheduled interest received on the Mortgage Loans, excluding Advances; (ivxxxii) abovethe aggregate of all scheduled principal received on the Mortgage Loans, which reconciliation shows how excluding Advances; (xxxiii) the Net Revenue contained in current amount of Advances outstanding; (xxxiv) the WH Net Revenue is being reflected in amount advanced by the Net Revenue statements delivered pursuant to clause related Servicer; (ivxxxv) abovethe amount of principal advanced by the related Servicer; and (xxixxxvi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request amount of Landlord: (A) at interest advanced by the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementrelated Servicer

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Greenwich Capital Acc Inc Mort Loan Pas THR Certs Ser 01 2)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on the Mortgage Loan information contained in the Remittance Report, the Securities Administrator shall furnish or cause make available to Holders of the Regular Certificates and the NIMS Insurer on its internet website, initially located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇," a statement (a "Distribution Date Statement") as to the distributions to be furnished the following to Landlordmade on such Distribution Date: (i) As the Principal Distribution Amount and the amount of the distribution made on such Distribution Date to the Holders of each SPE Tenant: Class of Certificates allocable to principal, separately identified and the amount of the distribution made on such Distribution Date to the Holders of the Class P Certificates allocable to Prepayment Charges and Servicer Prepayment Charge Payment Amounts; (ii) the Interest Remittance Amount and the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to interest or Class CE Distributable Amount, separately identified; (iii) the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency Amount and the Overcollateralization Target Amount as of such Distribution Date and the Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by the Servicer during the related Collection Period; (v) the aggregate amount of Advances for the related Due Period; (vi) the Pool Balance at the close of business at the end of the related Due Period; (vii) the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans (a) within ninety 30 to 59 days past due on a contractual basis, (90b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) with respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Mortgage Loan, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Collection Period, and the cumulative amount of Realized Losses and the Cumulative Realized Loss Percentage; (xiii) the Certificate Principal Balance of each Class of Certificates, after giving effect to the distributions, and allocations of Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xiv) the Accrued Certificate Interest in respect of each Class of Offered Certificates for such Distribution Date, and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23, and the amount of Relief Act Shortfalls applied to reduce the Interest Remittance Amount for each Class for such Distribution Date; (xvi) the amount of the Securities Administration Fee paid; (xvii) the aggregate amount of the Credit Risk Manager Fee paid; (xviii) any Overcollateralization Deficiency Amount after giving effect to the distributions of principal on such Distribution Date; (xix) whether a Trigger Event has occurred and is continuing; (xx) the Available Funds; (xxi) the Pass-Through Rate at which interest accrues for each Class of Certificates for such Distribution Date and the Formula Rate at which interest will accrue for such Class (other than the Class A-1 and, for the first 24 Distribution Dates, the Class A-2 Certificates) for the next Distribution Date, and the Pass-Through Rate for the Class A-1 and Class A-2 Certificates for the next Distribution Date; (xxii) the Liquidation Report for such Distribution Date; (xxiii) the aggregate Principal Balance of Mortgage Loans purchased by the Seller during the related Collection Period and indicating the Section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; (xxiv) the aggregate Principal Balance of the Mortgage Loans repurchased by the Depositor during the related Collection Period in connection with Section 3.16; (xxv) the amount of Unpaid Interest Shortfall Amount and Net WAC Rate Carryover Amount payable on each Class for such Distribution Date, separately identifying the portion of each that consists of interest accrued on previous such amounts, the amounts paid on each Class on such Distribution Date in respect of such items, and the amount of Unpaid Interest Shortfall Amount and Net WAC Rate Carryover Amount that will be payable on each Class on the next Distribution Date; and (xxvi) the amount of all reimbursements of Realized Losses previously allocated to reduce the Certificate Principal Balance of any Class of Certificates that were reimbursed on such Distribution Date, and the remaining amount of any Realized Losses that have been so allocated and not yet reimbursed, for each Class. Assistance in using the Securities Administrator's website can be obtained by calling the Securities Administrator's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Securities Administrator shall have the right to change the way such reports are distributed in order to make such distribution more convenient and/or more accessible to the parties, and the Securities Administrator shall provide timely and adequate notification to all parties regarding any such change. The Securities Administrator's obligations pursuant to this Section 4.06 are limited to the extent of its receipt of all necessary information from the Servicer. The Securities Administrator may fully rely upon and shall have no liability with respect to information with respect to the Mortgage Loans provided by the Servicer. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate Section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within a reasonable period of time after the end of each Fiscal Year (commencing with calendar year, the Fiscal Year ending December 31Trustee shall furnish to each Person who at any time during the calendar year was a Certificateholder of a Regular Certificate, 2017)if requested in writing by such Person, but if Guarantor is not a reporting company under and to the Exchange ActNIMS Insurer, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after containing the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, information set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes); (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause subclauses (i), (ii), (xi), (xii), (xxiii) and (iii)xxiv) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering aggregated for such Fiscal Year and containing statement of profit and losscalendar year or applicable portion thereof during which such Person was a Certificateholder, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified plus other information as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act Administrator may determine and advise the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements Trustee to be filed necessary and/or to be required by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service or by federal or state laws, rules or regulations to enable such Certificateholders to prepare their tax returns for such calendar year. Such obligations of the Trustee and the Securities Administrator shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee or the Securities Administrator to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (including c) On each Distribution Date, the Securities Administrator shall make available on its website the same information to the Class R Certificateholders and the NIMS Insurer as that provided to the Regular Certificateholders in respect of Landlord REIT’s qualification such Distribution Date with such other information as a REIT) and (iii) any other federal, state the Securities Administrator deems necessary or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject appropriate. Such obligation of the Securities Administrator shall be deemed to Section 23.1(c) below; (iv) As soon as it is have been satisfied to the extent that substantially comparable information shall be prepared and in no event later than sixty (60) days after furnished to Class R Certificateholders by the end of each Fiscal Year, a statement of Net Revenue with respect Securities Administrator pursuant to each Facility with respect to such Fiscal Year (subject to the additional any requirements as provided in Section 3.2 hereof in respect of the periodic determination Code as from time to time in force. Within a reasonable period of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount of depreciation and Trustee shall furnish to each Person who at any improvements thereto, substantially in time during the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence calendar year was a Holder of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) Residual Certificate and the actions Tenant has taken or shall takeNIMS Insurer a statement setting forth the amount, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information actually distributed with respect to the Leased Property Residual Certificates, as appropriate, aggregated for such calendar year or any applicable portion thereofthereof during which such Person was a Certificateholder. (d) The Securities Administrator shall, Tenant upon request, furnish to each Certificateholder and the NIMS Insurer, during the term of this Agreement, such periodic, special, or its Affiliates (excluding (i) any material non-public other reports or information, (ii) any Competitively Sensitive Informationwhether or not provided for herein, and (iii) any information subject as shall be reasonable with respect to bona fide confidentiality restrictions; providedthe Certificateholder or the NIMS Insurer, howeveras the case may be, that or otherwise with respect to the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) purposes of this parenthetical)Agreement, all such reports or information to be provided at the expense of the Certificateholder or the NIMS Insurer, as the case may be, in accordance with such reasonable and explicit instructions and directions as the Certificateholder or the NIMS Insurer, as the case may be, may provide. For purposes of this Section 4.06, the Securities Administrator's duties are effective only to the extent reasonably requested by such Fee Mortgagee in order to satisfy that the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably Securities Administrator receives timely reports as required by prospective investors and/or rating agencies; and (B) review, re-review and, to from the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial StatementServicer.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Asset Backed Funding Corp)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Master Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Swap Provider, the Master Servicer and the Rating Agencies, a statement as to Landlord:the distributions made on such Distribution Date (the “Monthly Statement”): (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Master Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossNet Monthly Excess Cashflow, a balance sheetthe Overcollateralized Amount, and statement of cash flows for ERIthe Overcollateralization Release Amount, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared any fees and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect expenses of the periodic determination of the Variable Rent hereunder)Trust accrued and paid on such Distribution Date and to whom such fees and expenses were paid; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to Advances for the related Due Period (including the general purpose of such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming AuthoritiesAdvances); (vi) the aggregate amount of interest and scheduled principal received or advanced by the Master Servicer with respect to the related Due Period; (vii) with respect to each Loan Group, the related group balance at the Close of Business at the end of the related Due Period; (viii) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (ix) the number and aggregate unpaid principal balance of Mortgage Loans (except those Mortgage Loans that are liquidated as of the end of the related Prepayment Period) that were (as determined using the OTS method) (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (x) the Delinquency Percentage; (xi) the total number and cumulative principal balance of all Liquidated Mortgage Loans as of the Close of Business of the last day of the preceding Prepayment Period, prior to the reduction of each principal balance to zero; (xii) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xiii) the aggregate amount of Principal Prepayments in full, the aggregate amount of Principal Prepayments in part and Net Liquidation Proceeds made during the related Prepayment Period; (xiv) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xv) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xvi) the Certificate Principal Balance of each Class of Class A Certificates, each class of Mezzanine Certificates and the Class C Certificates, before and after giving effect to the distributions made on such Distribution Date; (xvii) the Monthly Interest Distributable Amount in respect of each Class of Class A Certificates, each class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date; (xviii) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Master Servicer pursuant to Section 3.26; (xix) the Senior Credit Enhancement Percentage for such Distribution Date; (xx) the Net WAC Rate Carryover Amount for each class of Class A Certificates and each class of Mezzanine Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xxi) the amount of any Net Swap Payments or Swap Termination Payments (a) due from the Trust and (b) due from the Swap Provider; (xxii) whether the Stepdown Date or a Trigger Event is in effect; (xxiii) the total cashflows received; (xxiv) the respective Pass-Through Rates applicable to each Class of Class A Certificates, each Class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Class A Certificates and each class of Mezzanine Certificates for the immediately succeeding Distribution Date; (xxv) (A) the amount of payments received related to claims under the Pool Policy during the related Prepayment Period (and the number of Mortgage Loans to which such payments related) and (B) the cumulative amount of payments received related to claims under the Pool Policy since the Closing Date (and the number of Mortgage Loans to which such payments related); (xxvi) A) the dollar amount of claims made under the Pool Policy that were denied during the Prepayment Period (and the number of Mortgage Loans to which such denials related) and (B) the dollar amount of the cumulative claims made under the Pool Policy that were denied since the Closing Date (and the number of Mortgage Loans to which such denials related); (xxvii) the amount on deposit Net WAC Rate Carryover Reserve Account; and (xxviii) the applicable Record Date, Accrual Period and Determination Date for calculating distributions for such Distribution Date; The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the NIMS Insurer and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at “w▇▇.▇▇▇▇▇▇▇.▇▇▇”. Assistance in using the website can be obtained by calling the Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the distribution date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. In addition, the Trustee will report on Form 10-D any material breaches of representations and warranties regarding the Mortgage Loans to the extent known to the Trustee and if applicable, material modifications, extensions or waivers to Mortgage Loan terms, fees, penalties or payments during the preceding calendar month or that have become material over time. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to the NIMS Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the NIMS Insurer and the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items Trustee shall deliver to the NIMS Insurer and each Person who at any time during the calendar year was a Residual Certificateholder, if requested in writing by such Person, such information as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision requirements of this Lease;the Code as from time to time in force. (xviiie) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 For each Distribution Date, through and including the Distribution Date in December 2006, the Trustee shall calculate the Significance Percentage of the MTSA by TenantInterest Rate Swap Agreement. If on any such Distribution Date, ERI the Significance Percentage is equal to or any direct or indirect subsidiary of ERI to greater than 9%, the extent relevant to Trustee shall promptly notify the calculation of Net Revenues hereunderDepositor and the Depositor, in each case within fifteen (15) days on behalf of the receipt thereof; (xx) On an annual basisTrustee, a detailed reconciliation of shall obtain the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed delivered by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided the Swap Provider pursuant to Section 23.1(b)(iii) the terms of the Interest Rate Swap Agreement. If, on any succeeding Distribution Date through and including the Distribution Date in December 2006, the Significance Percentage is equal to or greater than 10%, the Trustee shall be prepared in compliance with applicable federal securities lawspromptly notify the Depositor and the Depositor shall, including Regulation S-X (and for any prior periods required thereunder)within 5 Business Days of such Distribution Date, if and deliver to the extent Trustee the financial information provided to it by the Swap Provider for inclusion in the Form 10-D relating to such compliance with federal securities lawsDistribution Date. If on any Distribution Date after December 2006, including Regulation S-X (and the Significance Percentage is greater than 10%, the Trustee shall include the Significance Percentage on the statement to Certificateholders for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementthe related Distribution Date.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Option One Mortgage Loan Trust Series 2006-2)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause prepare and post on its website at www.usbank.com/abs and forward by mail to be furnished each Holder of the following Regular Ce▇▇▇▇▇▇▇▇▇▇, ▇ ▇▇▇▇ement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to the Holders of each SPE Tenant: Class of Certificates allocable to principal or reduction of Notional Amount, separately identified; (ii) the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to interest or Class X Distributable Amount, separately identified; (iii) the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Overcollateralization Target Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by the Servicer during the related Collection Period and accrued and unpaid Special Servicing Fees; (v) the aggregate amount of Advances for the related Collection Period; (vi) the Pool Balance and the Loan Group Balance for each Loan Group at the close of business at the end of the related Collection Period; (vii) separately stated for each Loan Group, the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) separately stated for each Loan Group, the number and aggregate unpaid principal balance of Mortgage Loans (a) within ninety 30 to 59 days past due on a contractual basis, (90b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) separately stated for each Loan Group, with respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Mortgage Loan, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) separately stated for each Loan Group, the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) separately stated for each Loan Group, the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of prepayment penalties collected (including amounts deposited in connection with the full or partial waiver of such prepayment penalties pursuant to Section 3.01) during the related Collection Period and the amounts thereof allocable to the Class N Certificates and the Class X Certificates; (xiii) separately stated for each Loan Group, the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiv) the Certificate Principal Balance, or Notional Amount, as applicable, of each Class of Certificates and each Component, after giving effect to the distributions, and allocations of Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xv) the Accrued Certificate Interest in respect of each Class of Offered Certificates and each Component for such Distribution Date, separately identifying the portions thereof attributable to LIBOR Carryover Amounts, and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23; (xvii) [Reserved]; (xviii) [Reserved]; (xix) the amount of the Trustee Fee paid; (xx) the Cap Carryover Amounts distributed on such Distribution Date and the portion thereof constituting LIBOR Carryover Amounts and the amounts remaining after giving effect to distributions thereof on such Distribution Date; (xxi) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xxii) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xxiii) the Available Funds; (xxiv) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxv) the Liquidation Report for such Distribution Date; (xxvi) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer or Seller during the related Collection Period and indicating the Section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; and (xxvii) the aggregate Principal Balance of the Mortgage Loans repurchased by the Servicer (or an affiliate) during the related Collection Period in connection with Section 3.16. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Mortgage Loans provided by the Servicer. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within a reasonable period of time after the end of each Fiscal Year (commencing with calendar year, the Fiscal Year ending December 31Trustee shall furnish to each Person who at any time during the calendar year was a Certificateholder of a Regular Certificate, 2017)if requested in writing by such Person, but if Guarantor such information as is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering reasonably necessary to provide to such Fiscal Year and containing Person a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after containing the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, information set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes); (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause subclauses (i), (ii), (xv) and (iii)xx) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering aggregated for such Fiscal Year and containing statement calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which Trustee shall be unqualified as deemed to scope of audit of ERI and its Subsidiaries and shall provide in substance have been satisfied to the extent that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which substantially comparable information shall be limited prepared and furnished by the Trustee to balance sheetsCertificateholders pursuant to any requirements of the Code as are in force from time to time. (c) On each Distribution Date, income statements, and statements the Trustee shall forward to the Residual Certificateholders a copy of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or the reports forwarded to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including Regular Certificateholders in respect of Landlord REIT’s qualification such Distribution Date with such other information as a REIT) and (iii) any other federal, state the Trustee deems necessary or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect appropriate. Such obligation of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished to Landlord no later than fifty-five (55) days following Residual Certificateholders by the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (C Bass Mortgage Loan Asset Backed Cert Series 2002-Cb5)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause prepare and post on its website at www.usbank.com/abs, a statement as to be furnished the following to Landlorddistributions made on such Di▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇: (i) As the amount of the distribution made on such Distribution Date to the Holders of each SPE Tenant: Class of Certificates allocable to principal or reduction of Notional Amount, separately identified; (ii) the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to interest or Class X Distributable Amount, separately identified; (iii) the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Targeted Overcollateralization Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by the Servicer during the related Collection Period; (v) the aggregate amount of Advances for the related Collection Period; (vi) the Pool Balance and the Loan Group Balance for each Loan Group at the close of business at the end of the related Collection Period; (vii) separately stated for each Loan Group, the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) separately stated for each Loan Group, the number and aggregate unpaid principal balance of Mortgage Loans (a) within ninety 30 to 59 days past due on a contractual basis, (90b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) separately stated for each Loan Group, with respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Mortgage Loan, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) separately stated for each Loan Group, the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) separately stated for each Loan Group, the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of prepayment penalties collected (including amounts deposited in connection with the full or partial waiver of such prepayment penalties pursuant to Section 3.01) during the related Collection Period and the amounts thereof allocable to the Class N Certificates and the Class X Certificates; (xiii) separately stated for each Loan Group, the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiv) the Certificate Principal Balance, or Notional Amount, as applicable, of each Class of Certificates, after giving effect to the distributions, and allocations of Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xv) the Accrued Certificate Interest in respect of each Class of Offered Certificates and the Class B-4 Certificates for such Distribution Date, separately identifying the portions thereof attributable to LIBOR Carryover Amounts, and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23; (xvii) [Reserved]; (xviii) [Reserved]; (xix) the amount of the Trustee Fee paid; (xx) the LIBOR Carryover Amounts distributed on such Distribution Date and the portion thereof constituting LIBOR Carryover Amounts, the amount of all LIBOR Carryover Amounts covered by withdrawals from the Reserve Account and the amounts remaining after giving effect to distributions thereof on such Distribution Date; (xxi) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xxii) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xxiii) the Available Funds; (xxiv) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxv) the Liquidation Report for such Distribution Date; (xxvi) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer or Seller during the related Collection Period and indicating the Section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; and (xxvii) the aggregate Principal Balance of the Mortgage Loans repurchased by the Servicer (or an affiliate) during the related Collection Period in connection with Section 3.16. Parties that are unable to use usbank.com/abs are entitled to have a paper copy mailed to them via fir▇▇ ▇▇▇▇▇ ▇▇▇▇ by calling the Trustee at (800) 934-6802 and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Mortgage Loans provided by the Servicer. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within a reasonable period of time after the end of each Fiscal Year (commencing with calendar year, the Fiscal Year ending December 31Trustee shall furnish to each Person who at any time during the calendar year was a Certificateholder of a Regular Certificate, 2017)if requested in writing by such Person, but if Guarantor such information as is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering reasonably necessary to provide to such Fiscal Year and containing Person a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after containing the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, information set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes); (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause subclauses (i), (ii), (xv) and (iii)xx) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering aggregated for such Fiscal Year and containing statement calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which Trustee shall be unqualified as deemed to scope of audit of ERI and its Subsidiaries and shall provide in substance have been satisfied to the extent that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which substantially comparable information shall be limited prepared and furnished by the Trustee to balance sheetsCertificateholders pursuant to any requirements of the Code as are in force from time to time. (c) On each Distribution Date, income statements, and statements the Trustee shall make available to the Residual Certificateholders a copy of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or the reports made available to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including Regular Certificateholders in respect of Landlord REIT’s qualification such Distribution Date with such other information as a REIT) and (iii) any other federal, state the Trustee deems necessary or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect appropriate. Such obligation of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished to Landlord no later than fifty-five (55) days following Residual Certificateholders by the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Asset Backed Funding Corp C Bass Mor Ln as Bk Ce Se 2004 Cb1)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to the Trustee by the Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Credit Risk Manager, the Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Net Monthly Excess Cashflow, a balance sheetthe Overcollateralized Amount, and statement of cash flows for ERIthe Overcollateralization Release Amount, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared the fees and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect expenses of the periodic determination of the Variable Rent hereunder)Trust Fund accrued and paid on such Distribution Date and to whom such fees and expenses were paid; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to Advances for the related Due Period (including the general purpose of such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming AuthoritiesAdvances); (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) using the OTS Method (as described below) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties, as well as the aggregate principal balance of Mortgage Loans that were liquidated and the net proceeds resulting therefrom; (ix) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the calendar month preceding the related Distribution Date; (x) the aggregate amount of Principal Prepayments made during the related Prepayment Period, separately indicating Principal Prepayments in full and Principal Prepayments in part; (xi) the aggregate amount of Realized Losses incurred during the related Prepayment Period, which will include the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the aggregate amount of Realized Losses incurred since the Closing Date, which will include the cumulative amount of Subsequent Recoveries received since the Closing Date; (xii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account or the Distribution Account for such Distribution Date; (xiii) the Certificate Principal Balance of each Class of Floating Rate Certificates and the Class C Certificates, before and after giving effect to the distributions made on such Distribution Date; (xiv) the Monthly Interest Distributable Amount in respect of the Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Floating Rate Certificates for such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.24; (xvi) the Credit Enhancement Percentage for such Distribution Date; (xvii) the Net WAC Rate Carryover Amount for the Floating Rate Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xviii) whether the Stepdown Date or a Trigger Event has occurred, the Delinquency Percentage for such Distribution Date and the Realized Loss Percentage for such Distribution Date; (xix) the total cashflows received and the general sources thereof (including amounts received from the Supplemental Interest Trust Trustee under the Interest Rate Swap Agreement, from the Cap Trustee under the Interest Rate Cap Agreement and under the Basis Risk Cap Agreement); (xx) the respective Pass-Through Rates applicable to the Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to the Floating Rate Certificates for the immediately succeeding Distribution Date; (xxi) payments, if any, made under the Basis Risk Cap Agreement and the Interest Rate Cap Agreement and the amount distributed to the Floating Rate Certificates from such payments; (xxii) the amount of any Net Swap Payments or Swap Termination Payments paid to the Swap Provider; (xxiii) the applicable Record Date, Accrual Period and any other applicable determination dates for calculating distributions for such Distribution Date; (xxiv) the amount of income and gain realized from the investment of funds deposited in the Distribution Account during the Float Period for such Distribution Date; (xxv) to the extent provided by the Servicer (A) the amount of payments received from the Servicer related to claims under each PMI Policy during the related Prepayment Period (and the number of Mortgage Loans to which such payments related) and (B) the cumulative amount of payments received related to claims under each PMI Policy since the Closing Date (and the number of Mortgage Loans to which such payments related); and (xxvi) to the extent provided by the Servicer (A) the dollar amount of claims made under each PMI Policy that were denied (as identified by the Servicer) during the Prepayment Period (and the number of Mortgage Loans to which such denials related) and (B) the dollar amount of the cumulative claims made under each PMI Policy that were denied since the Closing Date (and the number of Mortgage Loans to which such denials related). The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the NIMS Insurer and the Rating Agencies via the Trustee’s internet website. The Trustee’s internet website shall initially be located at “h▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/▇▇▇▇”. Assistance in using the website can be obtained by calling the Trustee’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee’s internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. For all purposes of this Agreement, with respect to any Mortgage Loan, delinquencies shall be determined by the Trustee from information provided by the Servicer and reported by the Trustee based on the OTS methodology for determining delinquencies on mortgage loans similar to the Mortgage Loans. By way of example, a Mortgage Loan would be Delinquent with respect to a Monthly Payment due on a Due Date if such Monthly Payment is not made by the close of business on the Mortgage Loan's next succeeding Due Date, and a Mortgage Loan would be more than 30-days Delinquent with respect to such Monthly Payment if such Monthly Payment were not made by the close of business on the Mortgage Loan’s second succeeding Due Date. The Servicer hereby represents and warrants to the Depositor that it is not subject to any delinquency recognition policy established by its safety and soundness regulators. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthResidual Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Soundview Home Loan Trust 2007-Ns1)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Net Monthly Excess Cashflow, a balance sheetthe Overcollateralized Amount, and statement of cash flows for ERIthe Overcollateralization Release Amount, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared the fees and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect expenses of the periodic determination of the Variable Rent hereunder)Trust Fund accrued and paid on such Distribution Date and to whom such fees and expenses were paid; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to Advances for the related Due Period (including the general purpose of such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming AuthoritiesAdvances); (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties, as well as the aggregate principal balance of Mortgage Loans that were liquidated and the net proceeds resulting therefrom; (ix) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the calendar month preceding the related Distribution Date; (x) the aggregate amount of Principal Prepayments made during the related Prepayment Period, separately indicating Principal Prepayments in full and Principal Prepayments in part; (xi) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses and the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the cumulative amount of Subsequent Recoveries received since the Closing Date; (xii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account or the Distribution Account for such Distribution Date; (xiii) the Certificate Principal Balance of each Class of Floating Rate Certificates and the Class C Certificates, before and after giving effect to the distributions made on such Distribution Date; (xiv) the Monthly Interest Distributable Amount in respect of the Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Floating Rate Certificates for such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.24; (xvi) the Credit Enhancement Percentage and the Senior Mezzanine Credit Enhancement Percentage for such Distribution Date; (xvii) the Net WAC Rate Carryover Amount for the Floating Rate Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xviii) whether the Stepdown Date or a Trigger Event has occurred, the Delinquency Percentage for such Distribution Date and the Realized Loss Percentage for such Distribution Date; (xix) the total cashflows received and the general sources thereof; (xx) the respective Pass-Through Rates applicable to the Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to the Floating Rate Certificates for the immediately succeeding Distribution Date; (xxi) payments, if any, made under the Cap Contract and the amount distributed to each Class of Certificates from payments made under the Cap Contract; (xxii) the amount of any Net Swap Payments or Swap Termination Payments; and (xxiii) the applicable Record Date, Accrual Period and any other applicable determination dates for calculating distributions for such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the Rating Agencies via the Trustee’s internet website. The Trustee’s internet website shall initially be located at “h▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/▇▇▇▇”. Assistance in using the website can be obtained by calling the Trustee’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee’s internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthResidual Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Soundview Home Loan Trust 2006-1)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to the Trustee by the Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Credit Risk Manager, the Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Net Monthly Excess Cashflow, a balance sheetthe Overcollateralized Amount, and statement of cash flows for ERIthe Overcollateralization Release Amount, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared the fees and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect expenses of the periodic determination of the Variable Rent hereunder)Trust Fund accrued and paid on such Distribution Date and to whom such fees and expenses were paid; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to Advances for the related Due Period (including the general purpose of such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming AuthoritiesAdvances); (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) using the OTS Method (as described below) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties, as well as the aggregate principal balance of Mortgage Loans that were liquidated and the net proceeds resulting therefrom; (ix) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the calendar month preceding the related Distribution Date; (x) the aggregate amount of Principal Prepayments made during the related Prepayment Period, separately indicating Principal Prepayments in full and Principal Prepayments in part; (xi) the aggregate amount of Realized Losses incurred during the related Prepayment Period, which will include the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the aggregate amount of Realized Losses incurred since the Closing Date, which will include the cumulative amount of Subsequent Recoveries received since the Closing Date; (xii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account or the Distribution Account for such Distribution Date; (xiii) the Certificate Principal Balance of each Class of Offered Certificates and the Class C Certificates, before and after giving effect to the distributions made on such Distribution Date; (xiv) the Monthly Interest Distributable Amount in respect of the Offered Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Offered Certificates for such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.24; (xvi) the Credit Enhancement Percentage for such Distribution Date; (xvii) the Net WAC Rate Carryover Amount for the Offered Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xviii) whether the Stepdown Date or a Trigger Event has occurred, the Delinquency Percentage for such Distribution Date and the Realized Loss Percentage for such Distribution Date; (xix) the total cashflows received and the general sources thereof (including amounts received from the Supplemental Interest Trust Trustee under the Interest Rate Swap Agreement, from the Cap Trustee under the Interest Rate Cap Agreement and under the Basis Risk Cap Agreement); (xx) the respective Pass-Through Rates applicable to the Offered Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to the Offered Certificates for the immediately succeeding Distribution Date; (xxi) payments, if any, made under the Basis Risk Cap Agreement and the Interest Rate Cap Agreement and the amount distributed to the Offered Certificates from such payments; (xxii) the amount of any Net Swap Payments or Swap Termination Payments paid to the Swap Provider; (xxiii) the applicable Record Date, Accrual Period and any other applicable determination dates for calculating distributions for such Distribution Date; and (xxiv) the amount of income and gain realized from the investment of funds deposited in the Distribution Account during the Float Period for such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the NIMS Insurer, the Credit Risk Manager and the Rating Agencies via the Trustee’s internet website. The Trustee’s internet website shall initially be located at “h▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/▇▇▇▇”. Assistance in using the website can be obtained by calling the Trustee’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee’s internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. For all purposes of this Agreement, with respect to any Mortgage Loan, delinquencies shall be determined by the Trustee from information provided by the Servicer and reported by the Trustee based on the OTS methodology for determining delinquencies on mortgage loans similar to the Mortgage Loans. By way of example, a Mortgage Loan would be Delinquent with respect to a Monthly Payment due on a Due Date if such Monthly Payment is not made by the close of business on the Mortgage Loan's next succeeding Due Date, and a Mortgage Loan would be more than 30-days Delinquent with respect to such Monthly Payment if such Monthly Payment were not made by the close of business on the Mortgage Loan’s second succeeding Due Date. The Servicer hereby represents and warrants to the Depositor that it is not subject to any delinquency recognition policy established by its safety and soundness regulators. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthResidual Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Soundview Home Loan Trust 2006-Wf2)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause to be furnished the following to Landlordprepare and post on its website at www.chase.com/sfa, a stat▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇istributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to the Holders of each SPE Tenant: Class of Certificates allocable to principal or reduction of Notional Amount, separately identified; (ii) the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to interest or Class X Distributable Amount, separately identified; (iii) the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Overcollateralization Target Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by the Servicer during the related Collection Period and accrued and unpaid Special Servicing Fees; (v) the aggregate amount of Advances for the related Collection Period; (vi) the Pool Balance and the Loan Group Balance for each Loan Group at the close of business at the end of the related Collection Period; (vii) separately stated for each Loan Group and each Sub-group, the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) separately stated for each Loan Group and each Sub-group, the number and aggregate unpaid principal balance of Mortgage Loans (a) within ninety 30 to 59 days past due on a contractual basis, (90b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) separately stated for each Loan Group and each Sub-group, with respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Mortgage Loan, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) separately stated for each Loan Group and each Sub-group, the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) separately stated for each Loan Group and each Sub-group, the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of prepayment penalties collected or deposits by the Seller in lieu thereof pursuant to Section 3.01 during the related Collection Period and the amounts thereof allocable to the Class N Certificates and the Class X Certificates; (xiii) separately stated for each Loan Group and each Sub-group, the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiv) the Certificate Principal Balance, or Notional Amount, as applicable, of each Class of Certificates, after giving effect to the distributions, and allocations of Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xv) the Accrued Certificate Interest in respect of each Class of Offered Certificates for such Distribution Date, separately identifying the portions thereof attributable to Rate Payments, and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23; (xvii) [Reserved]; (xviii) [Reserved]; (xix) the amount of the Trustee Fee paid; (xx) the LIBOR Carryover Amounts for the Class A-1F and Class A-1A Certificates distributed on such Distribution Date and the amounts remaining after giving effect to distributions thereof on such Distribution Date; (xxi) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xxii) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xxiii) the Available Funds; (xxiv) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxv) the Liquidation Report for such Distribution Date; (xxvi) the amount of any transfers from the HLTV Reserve Account and the amount remaining on deposit in the HLTV Reserve Account (with respect to each Loan Group) after giving effect to any such transfers; (xxvii) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer or Seller during the related Collection Period and indicating the Section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; and (xxviii) the aggregate Principal Balance of the Mortgage Loans repurchased by the Seller during the related Collection Period in connection with Section 3.16. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Mortgage Loans provided by the Servicer. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within a reasonable period of time after the end of each Fiscal Year (commencing with calendar year, the Fiscal Year ending December 31Trustee shall furnish to each Person who at any time during the calendar year was a Certificateholder of a Regular Certificate, 2017)if requested in writing by such Person, but if Guarantor such information as is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering reasonably necessary to provide to such Fiscal Year and containing Person a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after containing the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, information set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes); (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause subclauses (i), (ii), (xv) and (iii)xx) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering aggregated for such Fiscal Year and containing statement calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which Trustee shall be unqualified as deemed to scope of audit of ERI and its Subsidiaries and shall provide in substance have been satisfied to the extent that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which substantially comparable information shall be limited prepared and furnished by the Trustee to balance sheetsCertificateholders pursuant to any requirements of the Code as are in force from time to time. (c) On each Distribution Date, income statements, and statements the Trustee shall forward to the Class R Certificateholders a copy of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or the reports forwarded to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including Regular Certificateholders in respect of Landlord REIT’s qualification such Distribution Date with such other information as a REIT) and (iii) any other federal, state the Trustee deems necessary or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect appropriate. Such obligation of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished to Landlord no later than fifty-five (55) days following Class R Certificateholders by the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Asset Backed Funding Corp)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Master Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the NIMs Insurer, the Master Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Master Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Master Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date and the number and aggregate principal balance of all Subsequent Mortgage Loans added during the preceding Prepayment Period; (viii) the number and aggregate unpaid principal balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (ix) [reserved]; (x) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Master Servicer pursuant to Section 3.26; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for the Class A Certificates and the Mezzanine Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Pass- Through Rate applicable to the Class A Certificates and the Mezzanine Certificates for the immediately succeeding Distribution Date; (xxiii) (A) the amount of payments received related to claims under the PMI Policy during the related Prepayment Period (and the number of Mortgage Loans to which such payments related) and (B) the cumulative amount of payments received related to claims under the PMI Policy since the Closing Date (and the number of Mortgage Loans to which such payments related); (A) the dollar amount of claims made under the PMI Policy that were denied during the Prepayment Period (and the number of Mortgage Loans to which such denials related) and (B) the dollar amount of the cumulative claims made under the PMI Policy that were denied since the Closing Date (and the number of Mortgage Loans to which such denials related); (xxv) the amount on deposit in the Pre-Funding Account, the Interest Coverage Account and the Reserve Fund; and (xxvi) for the distribution occurring on the Distribution Date immediately following the end of the Funding Period, the balance on deposit in the Pre-Funding Account that has not been used to purchase Subsequent Mortgage Loans and that is being distributed to the Class A Certificates as a mandatory prepayment of principal, if any, on such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the NIMs Insurer and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at "www.ctslink.com". Assistance in usin▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇an be obtained by calling the Trustee's customer service desk at (301) 815-6600. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to the NIMs Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;91 Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall forward to the NIMs Insurer and the Class R Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items Trustee shall deliver to the NIMs Insurer and each Person who at any time during the calendar year was a Class R Certificateholder, if requested in writing by such Person, such information as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Class R Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Option One Mort Accep Corp Asset Backed Cert Ser 2001-1)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Master Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Master Servicer, the Rating Agencies and the Certificate Insurer, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31, 2017Class S Certificates), but if Guarantor is not a reporting company under separately identified, allocable to principal and the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, Class P Certificates allocable to normal year-end audit adjustments and the absence of footnotes)Prepayment Charges; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Master Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance and the Pool Balance of MI Loans and Non-MI Loans, each at the Close of Business at the end of the related Due Period; (vii) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the MI Loans and Non-MI Loans, respectively, as of the related Determination Date; (viii) the total number and aggregate unpaid principal balance of the Mortgage Loans and the MI Loans and Non-MI Loans, respectively, that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date, and (D) REO Properties; (ix) with respect to any Mortgage Loan that became an REO Property during the preceding Prepayment Period, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period and the total number and cumulative principal balance of REO Properties that were MI Loans and Non-MI Loans respectively; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period, the cumulative amount of Realized Losses and the aggregate amount of Realized Losses incurred on MI Loans and Non-MI Loans respectively; (xiii) the aggregate amount of Realized Losses incurred during the twelve months preceding such Distribution Date (or such fewer number of calendar months which have occurred since the Cut-off Date); (xiv) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account or Distribution Account for such Distribution Date; (xv) the Certificate Principal Balance of the Class A Certificates and the Notional Amount of the Class S Certificates, after giving effect to the distributions made on such Distribution Date; (xvi) the Interest Distributable Amount and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of the Class A Certificates and the Class S Certificates on such Distribution Date; (xvii) the aggregate amount of any Prepayment Interest Shortfalls and the Unpaid Interest Shortfall Amount for such Distribution Date, to the extent not covered by payments by the Master Servicer pursuant to Section 3.26; (xviii) the aggregate Premium Amount to be paid to the Certificate Insurer; (xix) the Net WAC Rate; (xx) the Net WAC Rate Carryover Amount, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xxi) any Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xxii) whether the Step Up Cumulative Loss Test and/or Step Up Rolling Loss Test have been met and the cumulative realized losses, as a percentage of the original Pool Balance; (xxiii) the Available Funds; (xxiv) the Pass-Through Rate for the Class A Certificates for such Distribution Date; (xxv) [reserved]; (xxvi) the aggregate Principal Balance of the Mortgage Loans, and the MI Loans and Non-MI Loans, respectively, purchased by the Master Servicer, Originator or Sponsor during the related Prepayment Period and indicating the Section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; (xxvii) the number of delinquent Mortgage Loans, and MI Loans and Non-MI Loans, respectively, sold during the preceding Prepayment Period, the aggregate outstanding principal balance of such MI Loans and Non-MI Loans and the aggregate sale price; (xxviii) the amount on deposit in the Reserve Account; (xxix) the amount of the Reserve Account Addition; (xxx) amounts received under the Cap Agreements; and (xxxi) claims filed, claims made, claims rejected or reduced under the MI Policy in the six month periods ending at the end of the preceding month, the second preceding month and the third preceding month, by dollar amount, as a percentage of the Original Pool Balance, and as a percentage of the total number of Mortgage Loans. (xxxii) dollar amount of claims paid under the MI Policy and dollar amount of claims rejected or reduced under the MI Policy in the prior twelve months divided by the balance of the MI Loans at the beginning of such twelve month period; and The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the Rating Agencies and the Certificate Insurer via the Trustee's internet website. The Trustee's internet website shall initially be located at "www.ctslink.com". Assistance in usin▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇an be obtained by calling the Trustee's customer service desk at (301) 815-6600. Parties that are unable to use the above distribution options are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall forward to the Class R Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthClass R Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a Class R Certificateholder. Such obligation of the Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and a summary furnished to Certificateholders by the Trustee pursuant to any requirements of all leasing activity then taking place at each Facility;the Code as from time to time in force. (xiiie) Operating budget for each SPE Tenant for each Fiscal YearThe Trustee hereby agrees to disclose the Premium Amount to any Person upon request. (f) If and when the aggregate principal amount of Realized Losses on the MI Loans is equal to or greater than $5,289,733.14, which the Trustee shall be delivered give notice in writing of such fact to Landlord the Sponsor, the Master Servicer, the MI Insurer and the Certificate Insurer no later than fifty-five (55) 5 days following after the commencement of the Fiscal Year to which occurrence after such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementevent.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Financial Asset Securities Corp)

Statements. Tenant (a) On each Distribution Date, based on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause prepare and post on its website at www.ctslink.com, a statement (the "Distribution Date Statement") as to be furnished the following to Landlord▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ns made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Certificates allocable to principal, separately identified and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, distribution made on such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, Distribution Date to the extent required as an Additional Fee Mortgagee RequirementHolders of the Class P Certificates allocable to Prepayment Charges, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Originator Prepayment Charge Payment Amounts and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC:the Holders of each Class of Certificates allocable to interest or Class CE Distributable Amount, separately identified; (Aiii) annual financial statements audited the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Overcollateralization Target Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by CEOC’s Accountant the Master Servicer during the related Collection Period; (v) the aggregate amount of Advances for the related Collection Period, cumulative unreimbursed Advances and Servicing Advances and cumulative Nonrecoverable Advances; (vi) the Pool Balance, at the close of business at the end of the related Collection Period; (vii) the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans (a) 30 to 59 days past due on a contractual basis, (b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in accordance bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) with GAAP covering respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Fiscal Year Mortgage Loan, the unpaid principal balance and containing statement the Principal Balance of profit such Mortgage Loan as of the date it became an REO Property; (x) the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and losscumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) separately stated for each Loan Group, a balance sheetthe aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) separately stated for each Loan Group, the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiii) the Certificate Principal Balance of each Class of Certificates, after giving effect to the distributions, and statement allocations of cash flows Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xiv) the Accrued Certificate Interest in respect of each Class of Certificates for CEOCsuch Distribution Date and any related Cap Carryover Amounts, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results respective portions thereof, if any, remaining unpaid following the distributions made in respect of their operations such Certificates on such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Master Servicer pursuant to Section 3.23; (xvi) the amount of the Trustee Fee paid; (xvii) the Cap Carryover Amounts distributed on such Distribution Date, the amounts remaining after giving effect to distributions thereof on such Distribution Date and cash flow the amount of all Cap Carryover Amounts covered by withdrawals from the Reserve Account on such Distribution Date; (xviii) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xix) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xx) the Available Funds; (xxi) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxii) the periods indicated information contained in conformity with GAAP the Liquidation Report for such Distribution Date; (xxiii) the aggregate Principal Balance of Mortgage Loans purchased by the Master Servicer, the Originator or the Seller during the related Prepayment Period and indicating the Section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; (Bxxiv) that the audit aggregate Principal Balance of the Mortgage Loans repurchased by such Accountant the Master Servicer during the related Prepayment Period in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadlineSection 3.16; (Bxxv) quarterly unaudited financial statements, consisting the amount of the Credit Risk Manager Fee paid; (xxvi) the Mortgage Loan identifying number of each Mortgage Loan with a Prepayment Charge that was the subject of a statement of profit Principal Prepayment in full during the related Collection Period, the Prepayment Charge listed on each related Mortgage Note and lossthe Prepayment Charge collected, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed the Servicer Prepayment Charge Payment Amount paid by the chief financial officer Master Servicer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken Originator Prepayment Charge Payment Amount paid by the Originator with respect thereto, and (B) certifying that to each such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadlineMortgage Loan; and (Cxxvii) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statementsamount of any claims made, and statements of cash flowany claims rejected, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) under the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT Mortgage Insurance Policy during the Term of this Lease, (ii) related Collection Period. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each Mortgage Loans provided by the Master Servicer. In the case of clause information furnished pursuant to subclauses (i), (ii) and (iii)xiii) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant the amounts shall be expressed in accordance with GAAP covering such Fiscal Year and containing statement a separate section of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope a dollar amount for each Class for each $1,000 original dollar amount as of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and Cut-off Date. (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end Within a reasonable period of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of necessary to provide to such Person a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and statement containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses set forth in subclauses (i), (ii) or (iii) of this parenthetical), (xiv) and (xvii) above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Trustee shall be deemed to have been satisfied to the extent reasonably requested that substantially comparable information shall be prepared and furnished by such Fee Mortgagee the Trustee to Certificateholders pursuant to any requirements of the Code as are in order force from time to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; andtime. (Bc) reviewOn each Distribution Date, re-review and, the Trustee shall forward to the Class R Certificateholder a copy of the reports forwarded to the Regular Certificateholders in respect of such Distribution Date with such other information as the Trustee deems necessary or appropriate. Such obligation of the Trustee shall be deemed to have been satisfied to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any substantially comparable information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared and furnished to Class R Certificateholder by the Trustee pursuant to any requirements of the Code as from time to time in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Asset Backed Funding Corp Abfc Asset Back Cert Ser 2003 Opt1)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause prepare and post on its website at www.chase.com/sfa, a statement as to be furnished the following to Landlorddistributions made on such ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇e: (i) As the amount of the distribution made on such Distribution Date to the Holders of each SPE Tenant: Class of Certificates allocable to principal or reduction of the Class N Notional Amount, separately identified; (ii) the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to interest or Class X Distributable Amount, separately identified; (iii) the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Overcollateralization Target Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by the Servicer during the related Collection Period and accrued and unpaid Special Servicing Fees; (v) the aggregate amount of Advances for the related Collection Period; (vi) the Pool Balance and the Loan Group Balance for each Loan Group at the close of business at the end of the related Collection Period; (vii) separately stated for each Loan Group and each Sub-group, the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) separately stated for each Loan Group and each Sub-group, the number and aggregate unpaid principal balance of Mortgage Loans (a) within ninety 30 to 59 days past due on a contractual basis, (90b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) separately stated for each Loan Group and each Sub-group, with respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Mortgage Loan, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) separately stated for each Loan Group and each Sub-group, the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) separately stated for each Loan Group and each Sub-group, the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of prepayment penalties collected or deposits by the Seller in lieu thereof pursuant to Section 3.01 during the related Collection Period and the amounts thereof allocable to the Class N Certificates and the Class X Certificates; (xiii) separately stated for each Loan Group and each Sub-group, the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiv) the Certificate Principal Balance, or Notional Amount, as applicable, of each Class of Certificates, after giving effect to the distributions, and allocations of Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xv) the beginning balance of amounts on deposit in the Excess Reserve Fund as of the preceding Distribution Date, any withdrawals from and deposits into the Excess Reserve Fund as of the Distribution Date, and the ending balance of amounts on deposit in the Excess Reserve Fund on such Distribution Date; (xvi) the beginning balance of amounts on deposit in the Class N Reserve Fund as of the preceding Distribution Date, any withdrawals from and deposits into the Class N Reserve Fund as of the Distribution Date, and the ending balance of amounts on deposit in the Class N Reserve Fund on such Distribution Date; (xvii) the Accrued Certificate Interest in respect of each Class of Offered Certificates for such Distribution Date, separately identifying the portions thereof attributable to Rate Payments, and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xviii) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23; (xix) [Reserved]; (xx) the Principal Balance of the Re-performing 60+ Day Delinquent Loans; (xxi) the amount of the Trustee Fee paid; (xxii) Class A-1A LIBOR Carryover Amounts for the Class A-1A Certificates distributed on such Distribution Date and the amounts remaining after giving effect to distributions thereof on such Distribution Date; (xxiii) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xxiv) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xxv) the Available Funds; (xxvi) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxvii) the Liquidation Report for such Distribution Date; (xxviii) [Reserved] (xxix) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer or Seller during the related Collection Period and indicating the Section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; and (xxx) the aggregate Principal Balance of the Mortgage Loans repurchased by the Seller during the related Collection Period in connection with Section 3.16. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Mortgage Loans provided by the Servicer. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate Section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-Off Date. (b) Within a reasonable period of time after the end of each Fiscal Year (commencing with calendar year, the Fiscal Year ending December 31Trustee shall furnish to each Person who at any time during the calendar year was a Certificateholder of a Regular Certificate, 2017)if requested in writing by such Person, but if Guarantor such information as is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering reasonably necessary to provide to such Fiscal Year and containing Person a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after containing the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, information set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes); (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause subclauses (i), (ii), (xv) and (iii)xx) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering aggregated for such Fiscal Year and containing statement calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which Trustee shall be unqualified as deemed to scope of audit of ERI and its Subsidiaries and shall provide in substance have been satisfied to the extent that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which substantially comparable information shall be limited prepared and furnished by the Trustee to balance sheetsCertificateholders pursuant to any requirements of the Code as are in force from time to time. (c) On each Distribution Date, income statements, and statements the Trustee shall provide to the Class R Certificateholders a copy of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or the reports provided to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including Regular Certificateholders in respect of Landlord REIT’s qualification such Distribution Date with such other information as a REIT) and (iii) any other federal, state the Trustee deems necessary or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect appropriate. Such obligation of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished to Landlord no later than fifty-five (55) days following Class R Certificateholders by the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Residential Asset Funding Corp)

Statements. Tenant (a) On each Distribution Date, based on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause to be furnished prepare and post on its website at www.ctslink.com, a statement (the following to Landlord"Distribution Date Statement") as t▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Certificates allocable to principal, separately identified and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, distribution made on such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, Distribution Date to the extent required as an Additional Fee Mortgagee RequirementHolders of the Class P Certificates allocable to Prepayment Charges, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Originator Prepayment Charge Payment Amounts and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC:the Holders of each Class of Certificates allocable to interest or Class CE Distributable Amount, separately identified; (Aiii) annual financial statements audited the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Targeted Overcollateralization Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year the Servicer during the related Collection Period and containing statement the amount of profit Compensating Interest paid by the Servicer; (v) the aggregate amount of Advances for the related Collection Period, cumulative unreimbursed Advances and lossServicing Advances and cumulative Nonrecoverable Advances; (vi) the Pool Balance, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results close of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after business at the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadlinerelated Collection Period; (Bvii) quarterly unaudited financial statementsthe number, consisting weighted average remaining term to maturity, the weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans (a) 30 to 59 days past due on a statement contractual basis, (b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of profit and loss, a balance sheet, and statement the close of cash flows for CEOC, together with a certificate, executed by business on the chief financial officer or treasurer last day of CEOC the calendar month preceding such Distribution Date; (Aix) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying to any Mortgage Loan that such Financial Statements fairly present, in all material respectsbecame an REO Property during the preceding calendar month, the financial position and results loan number of operations such Mortgage Loan, the unpaid Principal Balance of CEOC and its Subsidiaries the REO Property as of the close of business on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments the last Business Day of such calendar month and the absence Principal Balance of footnotes), all such Mortgage Loan as of which shall be provided the date it became an REO Property; (x) within sixty the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (60xi) days after separately stated for each Loan Group, the end aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) separately stated for each Loan Group, the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiii) the Certificate Principal Balance of each Class of Certificates, after giving effect to the distributions, and allocations of Applied Realized Loss Amounts, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Applied Realized Loss Amounts; (xiv) the Accrued Certificate Interest in respect of each Class of Certificates for such Distribution Date and any related Cap Carryover Amounts, and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23; (xvi) the Cap Carryover Amounts distributed on such Distribution Date, the amounts remaining after giving effect to distributions thereof on such Distribution Date and the amount of all Cap Carryover Amounts covered by withdrawals from the Swap Account or the Cap Carryover Reserve Account on such Distribution Date; (xvii) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xviii) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the first three original Pool Balance; (3xix) Fiscal Quarters the Available Funds; (xx) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxi) the information contained in the Liquidation Report for such Distribution Date; (xxii) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer, the Originator or the Seller during the related Prepayment Period and indicating the section of this Agreement or the Originator Mortgage Loan Purchase Agreement, as applicable, requiring or allowing the purchase of each Fiscal Year such Mortgage Loan; (commencing xxiii) the amount of the Credit Risk Manager Fee paid; (xxiv) the Mortgage Loan identifying number of each Mortgage Loan with a Prepayment Charge that was the Fiscal Quarter ending March 31subject of a Principal Prepayment in full during the related Prepayment Period, 2018the Prepayment Charge listed on each related Mortgage Note and the Prepayment Charge collected, the Servicer Prepayment Charge Payment Amount paid by the Servicer or the Originator Prepayment Charge Payment Amount paid by the Originator with respect to each such Mortgage Loan; (xxv) but if Guarantor the amount of Subsequent Recoveries received during the related Prepayment Period; (xxvi) only for so long as the Trust is not a reporting company under subject to the Exchange ActAct reporting requirements, in no event later than five the Interest Rate Swap Agreement's "significance percentage" of the Pool Balance; (5xxvii) Business Days before Landlord REIT’s the amount and recipient of any Net Swap Payments and Swap Termination Payments; (xxviii) the date of such Distribution Date and the Determination Date for such Distribution Date; (xxix) any expenses or indemnification amounts paid by the Trust Fund, the specific purpose of each payment and the parties to whom these payments are made; (xxx) for each Class, the applicable Form 10-Q filing deadlineRecord Date and Interest Accrual Period; and (Cxxxi) unless such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to is otherwise set forth in Form 10-Q Quarterly ReportsD relating to such Distribution Date, 10-K Annual Reports any material breaches of representations and registration statements warranties relating to be filed the Mortgage Loans or material breaches of transaction covenants or representations and warranties. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Mortgage Loans provided by Landlordthe Servicer. In determining whether a breach of a representation or warranty relating to the Mortgage Loans is material or whether a breach of a transaction covenant or representation or warranty is material for purposes of subclause (xxxi) above, PropCo 1, PropCo or Landlord REIT during the Term Trustee may consult with the Depositor and rely on the Depositor's determination of this Lease, (ii) materiality. In the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause information furnished pursuant to subclauses (i), (ii) and (iii)xiii) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant the amounts shall be expressed in accordance a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. The Trustee will also make available copies of the periodic reports the Trustee prepares and files with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERIthe Commission, including distribution reports on Form 10-D, annual reports on Form 10-K, current reports on Form 8-K and amendments to these reports available through www.ctslink.com promptly (but no later than one Business Day) after t▇▇ ▇▇▇▇▇▇▇ ▇▇▇ filed such reports with the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and Commission. (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end Within a reasonable period of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall furnish to the NIMS Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of necessary to provide to such Person a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and statement containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses set forth in subclauses (i), (ii) or (iii) of this parenthetical), (xiv) and (xvi) above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Trustee shall be deemed to have been satisfied to the extent reasonably requested that substantially comparable information shall be prepared and furnished by such Fee Mortgagee the Trustee to Certificateholders pursuant to any requirements of the Code as are in order force from time to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; andtime. (Bc) reviewOn each Distribution Date, re-review and, the Trustee shall forward to each Residual Certificateholder a copy of the reports forwarded to the Regular Certificateholders in respect of such Distribution Date with such other information as the Trustee deems necessary or appropriate. Such obligation of the Trustee shall be deemed to have been satisfied to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any substantially comparable information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared and furnished to each Residual Certificateholder by the Trustee pursuant to any requirements of the Code as from time to time in compliance with applicable federal securities lawsforce. (d) For all purposes of this Agreement including, including Regulation S-X but not limited to, providing the information set forth in clause (and for any prior periods required thereunderviii) of Section 4.06(a), if with respect to any Mortgage Loan, delinquencies shall be determined and reported based on the so-called "OTS" methodology for determining delinquencies on mortgage loans similar to the extent Mortgage Loans. By way of example, a Mortgage Loan would be one payment delinquent with respect to a Monthly Payment due on a Due Date if such compliance Monthly Payment is not made by the close of business on the Mortgage Loan's next succeeding Due Date, and a Mortgage Loan would be two payments delinquent with federal securities lawsrespect to such Monthly Payment if such Monthly Payment were not made by the close of business on the Mortgage Loan's second succeeding Due Date. The Servicer hereby represents and warrants to the Depositor that this delinquency recognition policy is its current policy and is not less restrictive than any delinquency recognition policy established by the primary safety and soundness regulator, including Regulation S-X (and for any prior periods required thereunder)if any, is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementof the Servicer.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (ABFC 2006-Opt3 Trust)

Statements. Tenant (a) Two Business Days prior to each Distribution Date, the Securities Administrator shall furnish or cause make available to the Yield Maintenance Counterparty (and on the Auction Distribution Date, to the Auction Administrator), and concurrently with each distribution to Certificateholders, the Securities Administrator shall make available to each Certificateholder, the Seller, the Master Servicer, the Trustee and the Rating Agencies, a statement based, as applicable, on loan-level information provided to it by the Master Servicer, (the “Distribution Date Statement”) as to the distributions to be furnished made or made, as applicable, on such Distribution Date. Information in the following Distribution Date Statement relating to Landlordor based on amounts available in the Yield Maintenance Account shall be based on information provided by the Yield Maintenance Counterparty regarding any Yield Maintenance Amounts required to be paid by the Yield Maintenance Counterparty for the related Distribution Date pursuant to the Yield Maintenance Agreements. The Distribution Date Statement shall include the following: (i) As the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to principal; (ii) the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to interest, including any Required Reserve Fund Deposits; (iii) the Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage and Subordinate Prepayment Percentage with respect to each SPE Tenant: Loan Group for the following Distribution Date; (iv) the aggregate amount of servicing compensation received by each Servicer during the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to enable Certificateholders to prepare their tax returns; (v) the aggregate amount of Advances for the related Due Period and the amount of unreimbursed Advances; (vi) the Available Funds Cap for each Class of Senior Certificates (other than the Class A-X Certificates) on such Distribution Date; (vii) the Loan Group Balance and related Net WAC for each Loan Group at the Close of Business at the end of the related Due Period; (viii) the aggregate Principal Balance of the One-Year CMT Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (ix) the aggregate Principal Balance of the Six-Month LIBOR Indexed, One-Month LIBOR Indexed and One-Year LIBOR Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (x) [reserved] (xi) for each Loan Group, the number, weighted average remaining term to maturity and weighted average Loan Rate of the related Mortgage Loans as of the related Due Date; (xii) the number and aggregate unpaid principal balance of Mortgage Loans, in the aggregate and for each Loan Group, (a) within ninety 30 to 59 days Delinquent, (90b) 60 to 89 days Delinquent, (c) 90 or more days Delinquent, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy, in each case as of the close of business on the last day of the preceding calendar month; (xiii) the total number and cumulative principal balance of all REO Properties in each Loan Group as of the Close of Business of the last day of the preceding Due Period; (xiv) the aggregate amount of Principal Prepayments and Prepayment Penalty Amounts with respect to each Loan Group made during the related Prepayment Period; (xv) the aggregate amount of Realized Losses incurred during the related Due Period and the cumulative amount of Realized Losses; (xvi) the Class Certificate Principal Balance of each Class of Certificates and the Apportioned Principal Balances of the Subordinate Certificates after giving effect to any distributions made thereon, on such Distribution Date; (xvii) the Interest Distributable Amount in respect of each Class of Certificates, for such Distribution Date and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xviii) the aggregate amount of any Net Interest Shortfalls and the Unpaid Interest Shortfall Amount for such Distribution Date; (xix) the Available Funds with respect to each Loan Group; (xx) the Pass-Through Rate for each Class of Certificates for such Distribution Date and, through the Auction Distribution Date, the level of LIBOR used to determine the applicable Pass-Through Rate; (xxi) the aggregate Principal Balance of Mortgage Loans purchased hereunder by the Seller or TMI during the related Due Period, and indicating the relevant section of the related Servicing Agreement, or the Section of this Agreement, as applicable, requiring or allowing the purchase of each such Mortgage Loan; (xxii) the amount of any Principal Deficiency Amounts or Accrued Interest Amounts paid to an Undercollateralized Group or amounts paid pursuant to Section 5.01(f)(i); (xxiii) current Recoveries on such Distribution Date; (xxiv) cumulative Recoveries as of such Distribution Date; (A) the amounts paid to each Class of Senior Certificates (other than the Class A-X Certificate) from Yield Maintenance Amounts received from the Yield Maintenance Counterparty for such period in reduction of any Available Funds Cap Shortfalls, expressed as a per annum rate and as a dollar amount, (B) the amounts paid to the Class A-X Certificates from the excess Yield Maintenance Amounts expressed as a per annum rate and as a dollar amount and (C) the notional balances on each Yield Maintenance Agreement for such Distribution Date; (xxvi) the amount of any Unpaid Available Funds Cap Shortfall (if applicable) and the related accrued interest thereon, with respect to the Class A-1, Class A-2, Class A-3 and Class A-4 Certificates following the distributions and allocations made in respect of such Certificates on such Distribution Date; (xxvii) on the Auction Distribution Date, the Par Price (as defined in the Auction Administration Agreement) for each Class of Auction Certificates as reported to the Master Servicer by the Securities Administrator; and (xxviii) the total number of Mortgage Loans in the aggregate and the aggregate Stated Principal Balance in the aggregate and separately for each of the Three-Year, Five-Year, Seven-Year and Ten-Year Hybrid Mortgage Loans, in each case at the close of business at the end of the related Due Period. The Securities Administrator will make the Distribution Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the other parties to this Agreement via the Securities Administrator’s internet website. The Securities Administrator’s internet website shall initially be located at “▇▇▇.▇▇▇▇▇▇▇.▇▇▇.” Assistance in using the website can be obtained by calling the Securities Administrator’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Securities Administrator shall have the right to change the way such reports are distributed in order to make such distribution more convenient and/or more accessible to the parties, and the Securities Administrator shall provide timely and adequate notification to all parties regarding any such change. In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-Off Date. (b) Within a reasonable period of time after the end of each Fiscal Year (commencing with calendar year, the Fiscal Year ending December 31Securities Administrator shall, 2017)upon written request, but furnish to each Person who at any time during the calendar year was a Certificateholder of a Regular Certificate, if Guarantor requested in writing by such Person, such information as is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering reasonably necessary to provide to such Fiscal Year and containing Person a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after containing the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, information set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes); (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause subclauses (i), (ii) and (iii), subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, aggregated for such calendar year or applicable portion thereof during which reconciliation shows how such Person was a Certificateholder. Such obligation of the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant Securities Administrator shall be deemed to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), have been satisfied to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any substantially comparable information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared and furnished by the Securities Administrator to Certificateholders pursuant to any requirements of the Code as are in compliance with applicable federal securities lawsforce from time to time. (c) On each Distribution Date, including Regulation S-X (the Securities Administrator shall supply an electronic tape to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg Financial Markets, Inc. on a monthly basis, and for any prior periods required thereunder), if shall supply an electronic tape to Loan Performance and Intex Solutions in a format acceptable to the extent such compliance with federal securities laws, including Regulation S-X (Loan Performance and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial StatementIntex Solutions on a monthly basis.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Thornburg Mortgage Securities Trust 2005-2)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause (i) prepare and forward by mail to be furnished each Holder of the following Regular Certificates and (ii) make available on its website at w▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇ for access by each Holder of the Regular Certificates, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to the Holders of each SPE Tenant: Class of Certificates allocable to principal or reduction of Notional Amount, separately identified; (ii) the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to interest or Class X Distributable Amount, separately identified; (iii) the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Overcollateralization Target Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) [reserved]; (v) the aggregate amount of Advances for the related Collection Period; (vi) the Pool Balance at the close of business at the end of the related Collection Period; (vii) the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) the number and aggregate unpaid Principal Balance of Mortgage Loans (a) within ninety 30 to 59 days past due on a contractual basis, (90b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) with respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Mortgage Loan, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Prepayment Charges collected (including amounts deposited in connection with the full or partial waiver of such Prepayment Charges pursuant to Section 3.01) during the related Collection Period and the amounts thereof allocable to the Class N Certificates and the Class X Certificates; (xiii) the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiv) the Certificate Principal Balance or Notional Amount, as applicable, of each Class of Certificates, after giving effect to the distributions, and allocations of Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xv) the Accrued Certificate Interest in respect of each Class of Class A Certificates and the Mezzanine Certificates for such Distribution Date, and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date and the amount of any Net WAC Rate Carryover Amounts; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23; (xvii) the amount of the Trustee Fee paid; (xviii) the Net WAC Rate Carryover Amounts distributed on such Distribution Date and the amounts remaining after giving effect to distributions thereof on such Distribution Date; (xix) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xx) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xxi) the Available Funds; (xxii) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxiii) the Liquidation Report for such Distribution Date; (xxiv) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer or Seller during the related Collection Period and indicating the Section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; and (xxv) the aggregate Principal Balance of the Mortgage Loans repurchased by the Servicer (or an affiliate) during the related Collection Period in connection with Section 3.16. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Mortgage Loans provided by the Servicer. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within a reasonable period of time after the end of each Fiscal Year (commencing with calendar year, the Fiscal Year ending December 31Trustee shall furnish to each Person who at any time during the calendar year was a Certificateholder of a Regular Certificate, 2017)if requested in writing by such Person, but if Guarantor such information as is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering reasonably necessary to provide to such Fiscal Year and containing Person a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after containing the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, information set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes); (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause subclauses (i), (ii), (xv) and (iii)xx) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering aggregated for such Fiscal Year and containing statement calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which Trustee shall be unqualified as deemed to scope of audit of ERI and its Subsidiaries and shall provide in substance have been satisfied to the extent that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which substantially comparable information shall be limited prepared and furnished by the Trustee to balance sheetsCertificateholders pursuant to any requirements of the Code as are in force from time to time. (c) On each Distribution Date, income statements, and statements the Trustee shall forward to the Residual Certificateholders a copy of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or the reports forwarded to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including Regular Certificateholders in respect of Landlord REIT’s qualification such Distribution Date with such other information as a REIT) and (iii) any other federal, state the Trustee deems necessary or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect appropriate. Such obligation of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished to Landlord no later than fifty-five (55) days following Residual Certificateholders by the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc C-Bass Mortgage Loan Asset-Backed Certificates, Series 2004-Cb7)

Statements. Tenant (a) On each Distribution Date, the Trustee shall furnish or cause make available to each Certificateholder, the Seller and each Rating Agency, a statement based, as applicable, on loan-level information obtained from the Servicer (the “Distribution Date Statement”) as to the distributions to be furnished the following to Landlordmade or made, as applicable, on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement Class of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect Certificates allocable to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)principal; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting Class of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed Certificates allocable to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowinterest; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year the Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow Subordinate Prepayment Percentage for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowfollowing Distribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end amount of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to servicing compensation received by the additional requirements as provided in Section 3.2 hereof in respect of Servicer during the periodic determination of the Variable Rent hereunder);related Due Period (v) Prompt Notice to Landlord of any action, proposal customary information as the Trustee deems necessary or investigation by any agency or entitydesirable, or complaint which a Certificateholder reasonably requests, to such agency or entity (any of which is called a “Proceeding”), known enable Certificateholders to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)prepare their tax returns; (vi) the aggregate amount of Advances for the related Due Period and the amount of unreimbursed Advances; (vii) the Pool Balance and Net WAC at the Close of Business at the end of the related Due Period; (viii) the number, weighted average remaining term to maturity and weighted average Loan Rate of the Mortgage Loans as of the related Due Date; (ix) the number and aggregate unpaid principal balance of Mortgage Loans, (a) 30 to 59 days Delinquent, (b) 60 to 89 days Delinquent, (c) 90 or more days Delinquent, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy, in each case as of the close of business on the last day of the preceding calendar month; (x) the book value of any REO Property as of the Close of Business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Due Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Due Period and the cumulative amount of Realized Losses; (xiii) the Class Certificate Principal Balance or Class Certificate Notional Amount, as applicable, of each Class of Certificates after giving effect to any distributions made thereon, on such Distribution Date; (xiv) the Interest Distributable Amount in respect of each Class of Certificates, for such Distribution Date and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xv) the aggregate amount of any Net Interest Shortfalls and the Unpaid Interest Shortfall Amount for such Distribution Date; (xvi) the Available Funds; (xvii) the Pass-Through Rate for each Class of Certificates for such Distribution Date; and (xviii) the aggregate Principal Balance of Mortgage Loans purchased hereunder by the Seller during the related Due Period, and indicating the relevant section of the Servicing Agreement, or the Section of this Agreement, as applicable, requiring or allowing the purchase of each such Mortgage Loan. The Trustee will make the Distribution Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the other parties to this Agreement via the Trustee’s internet website. The Trustee’s internet website shall initially be located at “▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇.” Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk at ▇-▇▇▇-▇▇▇-▇▇▇▇ and indicating such. The Trustee shall have the right to change the way such reports are distributed in order to make such distribution more convenient and/or more accessible to the parties, and the Trustee shall provide timely and adequate notification to all parties regarding any such change. In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-Off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished by the Trustee to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Certificateholders pursuant to any other provision requirements of this Lease;the Code as are in force from time to time. (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xxc) On each Distribution Date, the Trustee shall supply an annual electronic tape to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg Financial Markets, Inc. on a monthly basis, and shall supply an electronic tape to Loan Performance and Intex Solutions in a detailed reconciliation of the financial information being provided format acceptable to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Loan Performance and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described Intex Solutions on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementmonthly basis.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Greenpoint Mortgage Loan Trust 2004-1)

Statements. Tenant (a) On each Distribution Date, the Trustee shall furnish or cause make available to each Certificateholder, the Seller, and the Rating Agency, a statement based, as applicable, on loan-level information obtained from and the Servicer (the “Distribution Date Statement”) as to the distributions to be furnished the following to Landlordmade or made, as applicable, on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement Class of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect Certificates allocable to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)principal; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting Class of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed Certificates allocable to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowinterest; (iii) As the Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage and Subordinate Prepayment Percentage with respect to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow each Loan Group for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowfollowing Distribution Date; (iv) As soon the aggregate amount of servicing compensation received by the Servicer during the related Due Period and such other customary information as it is prepared and in no event later than sixty (60) days after the end of each Fiscal YearTrustee deems necessary or desirable, or which a statement of Net Revenue with respect Certificateholder reasonably requests, to each Facility with respect enable Certificateholders to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any Advances for the related Due Period and the amount of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)unreimbursed Advances; (vi) [reserved]; (vii) the Loan Group Balance and related Net WAC and applicable Net WAC Cap for each Loan Group at the Close of Business at the end of the related Due Period; (viii) for each Loan Group, the aggregate Principal Balance of the One-Month MTA Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (ix) Reserved; (x) Reserved; (xi) for each Loan Group, the number, weighted average remaining term to maturity and weighted average Loan Rate of the related Mortgage Loans as of the related Due Date; (xii) the number and aggregate unpaid principal balance of Mortgage Loans, in the aggregate and for each Loan Group, (a) 30 to 59 days Delinquent, (b) 60 to 89 days Delinquent, (c) 90 or more days Delinquent, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy, in each case as of the close of business on the last day of the preceding calendar month; (xiii) the book value of any REO Property as of the Close of Business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties in each Loan Group as of the Close of Business of the last day of the preceding Due Period; (xiv) the aggregate amount of Principal Prepayments with respect to each Loan Group made during the related Prepayment Period; (xv) the aggregate amount of Realized Losses incurred during the related Due Period and the cumulative amount of Realized Losses and the amount of Realized Losses, if any, allocated to each Class of Certificates or Principal-Only Components; (xvi) the Class Certificate Principal Balance or Class Certificate Notional Balance, as applicable, of each Class of Certificates and the Apportioned Principal Balances of the Subordinate Certificates after giving effect to any distributions made thereon, on such Distribution Date; (xvii) the Interest Distributable Amount in respect of each Class of Certificates, for such Distribution Date and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xviii) the aggregate amount of any Net Interest Shortfalls and the Unpaid Interest Shortfall Amount for such Distribution Date; (xix) the Available Funds with respect to each Loan Group; (xx) the Pass-Through Rate for each Class of Certificates for such Distribution Date; (xxi) the aggregate Principal Balance of Mortgage Loans purchased hereunder by the Seller during the related Due Period, and indicating the relevant section of the Servicing Agreement, or the Section of this Agreement, as applicable, requiring or allowing the purchase of each such Mortgage Loan; (xxii) the amount of any Principal Deficiency Amounts or Accrued Interest Amounts paid to an Undercollateralized Group or amounts paid pursuant to Section 5.01(e)(i); (xxiii) current Recoveries allocable to each Loan Group; (xxiv) cumulative Recoveries allocable to each Loan Group; (xxv) the amount of any Basis Risk Shortfall, if any, and the related accrued interest thereon; (xxvi) for each Loan Group, the amount of Deferred Interest and Net Deferred Interest, if any, for such Loan Group; (xxvii) payments made under the Yield Maintenance Agreement, if any; and (xxviii) the amount of Net Deferred Interest, if any, added to the Class Certificate Principal Balance or Component Principal Balance of the related Certificates and Principal-Only Components. The Trustee will make the Distribution Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the other parties to this Agreement via the Trustee’s internet website. The Trustee’s internet website shall initially be located at “▇▇▇▇▇://▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇.▇▇▇.” Assistance in using the website can be obtained by calling the Trustee customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such reports are distributed in order to make such distribution more convenient and/or more accessible to the parties, and the Trustee shall provide timely and adequate notification to all parties regarding any such change. In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-Off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished by the Trustee to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Certificateholders pursuant to any other provision requirements of this Lease;the Code as are in force from time to time. (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xxc) On each Distribution Date, the Trustee shall supply an annual electronic tape to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg Financial Markets, Inc. on a monthly basis, and shall supply an electronic tape to Loan Performance and Intex Solutions in a detailed reconciliation of the financial information being provided format acceptable to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Loan Performance and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described Intex Solutions on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementmonthly basis.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (HarborView Mortgage Loan Trust 2005-3)

Statements. Tenant (a) On each Distribution Date, based on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause prepare and post on its website at www.ctslink.com, a statement (the "Distribution Date Statement") as to be furnished the following to Landlord▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ns made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Certificates allocable to principal, separately identified and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, distribution made on such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, Distribution Date to the extent required as an Additional Fee Mortgagee RequirementHolders of the Class P Certificates allocable to Prepayment Charges, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Originator Prepayment Charge Payment Amounts and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC:the Holders of each Class of Certificates allocable to interest or Class CE Distributable Amount, separately identified; (Aiii) annual financial statements audited the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Targeted Overcollateralization Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by CEOC’s Accountant the Master Servicer during the related Collection Period; (v) the aggregate amount of Advances for the related Collection Period, cumulative unreimbursed Advances and Servicing Advances and cumulative Nonrecoverable Advances; (vi) the Pool Balance, at the close of business at the end of the related Collection Period; (vii) the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans (a) 30 to 59 days past due on a contractual basis, (b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in accordance bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) with GAAP covering respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Fiscal Year Mortgage Loan, the unpaid Principal Balance of the REO Property as of the close of business on the last Business Day of such calendar month and containing statement the Principal Balance of profit such Mortgage Loan as of the date it became an REO Property; (x) the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and losscumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) separately stated for each Loan Group, a balance sheetthe aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) separately stated for each Loan Group, the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiii) the Certificate Principal Balance of each Class of Certificates, after giving effect to the distributions, and statement allocations of cash flows Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xiv) the Accrued Certificate Interest in respect of each Class of Certificates for CEOCsuch Distribution Date and any related Cap Carryover Amounts, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results respective portions thereof, if any, remaining unpaid following the distributions made in respect of their operations such Certificates on such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Master Servicer pursuant to Section 3.23; (xvi) the amount of the Trustee Fee paid; (xvii) the Cap Carryover Amounts distributed on such Distribution Date, the amounts remaining after giving effect to distributions thereof on such Distribution Date and cash flow the amount of all Cap Carryover Amounts covered by withdrawals from the Reserve Account on such Distribution Date; (xviii) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xix) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xx) the Available Funds; (xxi) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxii) the periods indicated information contained in conformity with GAAP the Liquidation Report for such Distribution Date; (xxiii) the aggregate Principal Balance of Mortgage Loans purchased by the Master Servicer, the Originator or the Seller during the related Prepayment Period and indicating the section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; (Bxxiv) that the audit aggregate Principal Balance of the Mortgage Loans repurchased by such Accountant the Master Servicer during the related Prepayment Period in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadlineSection 3.16; (Bxxv) quarterly unaudited financial statements, consisting the amount of the Credit Risk Manager Fee paid; (xxvi) the Mortgage Loan identifying number of each Mortgage Loan with a Prepayment Charge that was the subject of a statement Principal Prepayment in full during the related Collection Period, the Prepayment Charge listed on each related Mortgage Note and the Prepayment Charge collected, the Servicer Prepayment Charge Payment Amount paid by the Master Servicer or the Originator Prepayment Charge Payment Amount paid by the Originator with respect to each such Mortgage Loan; (xxvii) the amount of profit and loss, a balance sheetany claims made, and statement of cash flows for CEOCany claims rejected, together with a certificate, executed by under the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying Mortgage Insurance Policy during the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments related Collection Period and the absence amount of footnotes), all of which shall be provided any claims previously paid that are reimbursed to the Insurer (x) within sixty (60) days after the end of each net of the first three (3aggregate amount of Premium paid to the Insurer hereunder) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadlinepursuant to Section 3.01; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (ixxviii) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT amount of Subsequent Recoveries received during the Term of this Lease, (ii) related Prepayment Period. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each Mortgage Loans provided by the Master Servicer. In the case of clause information furnished pursuant to subclauses (i), (ii) and (iii)xiii) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant the amounts shall be expressed in accordance with GAAP covering such Fiscal Year and containing statement a separate section of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope a dollar amount for each Class for each $1,000 original dollar amount as of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and Cut-off Date. (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end Within a reasonable period of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall furnish to the NIMS Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of necessary to provide to such Person a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and statement containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses set forth in subclauses (i), (ii) or (iii) of this parenthetical), (xiv) and (xvii) above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Trustee shall be deemed to have been satisfied to the extent reasonably requested that substantially comparable information shall be prepared and furnished by such Fee Mortgagee the Trustee to Certificateholders pursuant to any requirements of the Code as are in order force from time to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; andtime. (Bc) reviewOn each Distribution Date, re-review and, the Trustee shall forward to the Class R Certificateholder a copy of the reports forwarded to the Regular Certificateholders in respect of such Distribution Date with such other information as the Trustee deems necessary or appropriate. Such obligation of the Trustee shall be deemed to have been satisfied to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any substantially comparable information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared and furnished to Class R Certificateholder by the Trustee pursuant to any requirements of the Code as from time to time in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Abfc Asset-Backed Certificates Series 2004-Opt2)

Statements. Tenant Each month, not later than 12:00 noon New York time on the Determination Date, the Trust Administrator shall furnish or cause deliver to the Indenture Trustee, by telecopy, for distribution to the Noteholders, and the Owner Trustee for distribution to the Certificateholders, the receipt and legibility of which shall be confirmed telephonically, with hard copy thereof to be furnished delivered on the Business Day following to Landlordthe Determination Date, a certificate signed by an officer of the Trust Administrator (a "Trust Administrator's Certificate") stating the date (day, month and year), the Series number of the Notes, the date of this Agreement, and the following: (i) As the Pool Available Remittance Amounts for each Pool for the related Remittance Date; (ii) the Class Principal Balances for each Class of Pool I and Pool II Notes as reported in the prior Trust Administrator's Certificate pursuant to each SPE Tenant: subclause (axv) within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31below, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subjector, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes); (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respectsfirst Determination Date, the financial position Original Principal Balance for each Class of Pool I and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowPool II Notes; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows the Pool Principal Distribution Amounts for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow each Pool for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Actrelated Remittance Date, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting the aggregate and listed separately for the portions relating to each Class of a statement of profit Pool I and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowPool II Notes; (iv) As soon as it is prepared the amount of any Letter of Credit Payments in the aggregate and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)listed separately by Pool; (v) Prompt Notice to Landlord the Current Interest Requirements for each Class of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Notes for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Remittance Date; (vi) Within ten the number and Principal Balances of all Loans in each Pool which were the subject of Principal Prepayments during the Due Period; (10vii) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation all Curtailments which were received during the Due Period, stated separately for each Pool; (viii) the aggregate amount of all Excess Payments and any improvements theretothe amounts of Monthly Payments in respect of principal received during the Due Period, substantially stated separately for each Pool; (ix) the amount of interest received on the Mortgage Loans, stated separately for each Pool; (x) the amount of the Monthly Advances to be made on the Determination Date, the portion of the Monthly Advances to be deposited in the Note Distribution Accounts pursuant to Section 7.01(a)(ii), and the Compensating Interest payment to be made on the Determination Date, in each case stated separately for each Pool; (xi) the delinquency and foreclosure information set forth in the form attached hereto as Exhibit DL, and stated separately for each Pool; (xii) the amount of any Realized Losses incurred during the related Due Period, stated separately for each Pool; (xiii) the Interest Shortfall Carryforward Amounts, if any, for each Class of Notes for such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Remittance Date; (viixiv) Within three the Reimbursable Amounts and the amounts transferred to the Owner Trustee for deposit into the Certificate Distribution Account and distribution to each Class of Certificates with respect to the Remittance Date; (3xv) Business Days the Class Principal Balance for each Class of obtaining actual knowledge Notes and the Pool Principal Balance for each Pool after giving effect to the distribution to be made on the Remittance Date and after allocation of Applied Realized Loss Amounts made on such Remittance Date; (xvi) the Excess Spread (in the aggregate and stated separately for each Pool); (xvii) the Spread Amount and the Specified Subordinated Amount for such Remittance Date, stated separately by Pool; (xviii) the amount of any Applied Realized Loss Amount, Realized Loss Amount and Unpaid Realized Loss Amount for each Class; (xix) amounts to be deposited to the Expense Accounts, stated separately for each Pool; (xx) the amount of all payments and reimbursements to the Servicer pursuant to Section 4.04(b), (c), (d)(ii), (e) and (f), stated separately with respect to each Pool; (xxi) the Class Pool Factor for each Class determined using the balances in subclause (xv) above; (xxii) the weighted average Loan Interest Rate of the occurrence Loans for each Pool and the Weighted Average Class Adjusted Loan Remittance Rates for each Pool, in each case for the related Remittance Date, and the weighted average Loan Interest Rate for the prior three month period; (xxiii) the Class Remittance Rate for each Class of a Tenant Event Notes with respect to the Remittance Date and if the Class Remittance Rate for any Class of Default Notes was based on the applicable Net Funds Cap, what it would have been if based on LIBOR plus the applicable Margin or the Auction Rate, as the case may be; (or xxiv) the rate of LIBOR and the Auction Rate with respect to the Remittance Date; (xxv) if the Remittance Rate for any Class of Notes for such Remittance Date is based on the applicable Net Funds Cap, the Net Funds Cap and, for Pool I, the Weighted Average Coupon Cap, for such Class of Notes with respect to the Remittance Date; (xxvi) if the Remittance Rate for any Class of Notes for such Remittance Date is based on the applicable Net Funds Cap, the amount of any Noteholders' Interest Carryover for such Class for such Remittance Date; (xxvii) the amount of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall takedistribution, if any, allocable to remedy Noteholders' Interest Carryover and the amount of any Noteholders' Interest Carryover for all prior Remittance Dates after giving effect to such Tenant Event of Default distribution (or such facts or circumstancesin each case, stated separately by Class and in the aggregate); (viiixxviii) Such additional customary the number and reasonable financial Principal Balance of all Defaulted Loans purchased during the Due Period, stated separately for each Pool; and (xxix) such other information related as the Indenture Trustee may reasonably require. The Indenture Trustee shall forward such report to any Facilitythe Noteholders of the applicable Pool and the Owner Trustee on the Remittance Date, Tenanttogether, CEOCif requested by a Noteholder, ERI with a separate report indicating the amount of funds deposited in each Note Distribution Account pursuant to Section 7.01(a)(iv); and their Affiliates the amounts which are reimbursable to the Servicer (all reports prepared by the Indenture Trustee of such withdrawals and deposits will be based in whole or in part upon the information provided to the Indenture Trustee by the Servicer or the Trust Administrator). To the extent that there are inconsistencies between the telecopy of the Trust Administrator's Certificate and the hard copy thereof, the Indenture Trustee shall be limited entitled to balance sheets and income statements (andrely upon the telecopy. In the discretion of the Trust Administrator, without limitation, all in the case of certain information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required furnished pursuant to the Fee Mortgage Documentsabove provisions, within the applicable timeframes required thereunder)amounts shall be expressed in a separate section of the report as a dollar amount for each Class per $25,000 original dollar amount as of the Cut-Off Date. Each month, in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder not later than the third Business Day prior to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject Determination Date occurring in such month, an occupancy report for the subject month, including an average daily rate and revenue per available room for Servicer shall deliver to the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent Trust Administrator the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, Servicer's Monthly Computer Tape in the form attached hereto as Exhibit I;R (both in hard copy and in computer tape form). The Trust Administrator may rely fully upon and shall have no liability with respect to any such information provided to it by the Servicer. The Trust Administrator shall not be obligated to verify, recompute, reconcile or confirm any information contained in the Servicer's Monthly Computer Tape or otherwise provided by the Servicer. In making any payments or distributions required to be made by them pursuant to any of the provisions hereof, the Indenture Trustee shall make such payments and distributions based solely upon the information contained in the applicable Trust Administrator's Certificate or, if such information is not included in the applicable Trust Administrator's Certificate, upon written instructions of the Servicer or the Trust Administrator. The Indenture Trustee may rely fully upon and shall have no liability with respect to any such information provided to it by the Servicer or the Trust Administrator. The Indenture Trustee shall not be obligated to verify, recompute, reconcile or confirm any information contained in any Trust Administrator's Certificate or otherwise provided by the Trust Administrator or the Servicer. (ixa) The compliance certificatesWithin a reasonable period of time after the end of each calendar year, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant Trust Administrator shall furnish to the preceding clause (xi), an updated rent roll and Indenture Trustee for distribution to each Person who at any time during the calendar year was a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement Noteholder of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant applicable Pool the amount of interest and principal distributed with respect to each SPE Tenant Class of Notes plus such other customary information as may the Trust Administrator determines to be reasonably requested necessary and/or required by Landlord;the Internal Revenue Service to enable the Noteholders to prepare their tax returns for such calendar year. Such obligation of the Trust Administrator shall be deemed to have been satisfied to the extent that substantially comparable information shall be provided by the Trust Administrator pursuant to any requirements of the Code as from time to time are in force. (xvb) The quarterly reporting On each Remittance Date, the Indenture Trustee shall forward to the Owner Trustee, for distribution to the Certificateholders, a copy of the report forwarded to the Noteholders of each Pool in respect of Bookings required such Remittance Date, as the case may be, and a statement, prepared by the Servicer or the Trust Administrator, setting forth the amounts actually distributed to the Certificateholders on such Remittance Date together with such other information as the Servicer or Trust Administrator provides and deems necessary or appropriate. (c) Within a reasonable period of time after the end of each calendar year, the Trust Administrator shall furnish to the Indenture Trustee, with a copy to the Owner Trustee for distribution to each Person who at any time during the calendar year was a Certificateholder such information as is reasonably necessary to provide to such Person a statement containing the information provided pursuant to Section 22.7 the previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder, as applicable. Such obligation of this Lease; (xvi) The reporting/copies of Subleases made the Trust Administrator shall be deemed to have been satisfied to the extent that substantially comparable information shall be provided by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise the Trust Administrator pursuant to any requirements of the Code as from time to time in force. (d) Upon reasonable advance notice in writing, the Servicer will provide to each Noteholder which is a savings and loan association, bank or insurance company certain reports and access to information and documentation regarding the Loans sufficient to permit such Noteholder to comply with applicable regulations of the Office of Thrift Supervision or other provision regulatory authorities with respect to investment in the Notes. (e) The Servicer shall furnish to each Noteholder during the term of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by TenantAgreement, ERI such periodic, special, or any direct other reports or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunderinformation, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basiswhether or not provided for herein, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) aboveas shall be necessary, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitizationreasonable, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information or appropriate with respect to the Leased Property Noteholder, or any portion thereofotherwise with respect to the purposes of this Agreement, Tenant all such reports or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, information to be provided by and (iii) any information subject to bona fide confidentiality restrictionsin accordance with such applicable instructions and directions as the Noteholder may reasonably require; provided, however, that the information described on Exhibit M Servicer shall not be so excluded even entitled to be reimbursed by such Noteholder for the Servicer's actual expenses incurred in providing such reports if such information qualifies within clauses (i), (ii) or (iii) reports are not producible in the ordinary course of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial StatementServicer's business.

Appears in 1 contract

Sources: Sale and Servicing Agreement (Money Store Commercial Mortgage Inc)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Master Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the NIMS Insurer, the Master Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Master Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Master Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) with respect to each Loan Group, the related group balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date and the number and aggregate principal balance of all Subsequent Mortgage Loans added during the preceding Prepayment Period; (viii) the number and aggregate unpaid principal balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (ix) [reserved]; (x) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of each Class of Class A Certificates, each class of Mezzanine Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of each class of Class A Certificates, each class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Master Servicer pursuant to Section 3.26; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for each class of Class A Certificates and each class of Mezzanine Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to each Class of Class A Certificates, each Class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Class A Certificates and each class of Mezzanine Certificates for the immediately succeeding Distribution Date; (A) the amount of payments received related to claims under the PMI Policy during the related Prepayment Period (and the number of Mortgage Loans to which such payments related) and (B) the cumulative amount of payments received related to claims under the PMI Policy since the Closing Date (and the number of Mortgage Loans to which such payments related); 109 (A) the dollar amount of claims made under the PMI Policy that were denied during the Prepayment Period (and the number of Mortgage Loans to which such denials related) and (B) the dollar amount of the cumulative claims made under the PMI Policy that were denied since the Closing Date (and the number of Mortgage Loans to which such denials related); (xxv) the amount on deposit in the Pre-Funding Accounts and the Net WAC Rate Carryover Reserve Account; and (xxvi) for the distribution occurring on the Distribution Date immediately following the end of the Funding Period, the balance on deposit in the Group I Pre-Funding Account and/or the Group II Pre-Funding Account that has not been used to purchase Subsequent Group I Mortgage Loans and/or Subsequent Group II Mortgage Loans, as applicable, and that is being distributed to the related Class A Certificates as a mandatory distribution of principal, if any, on such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the NIMS Insurer and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (301) 815-6600. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the distribution date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to the NIMS Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. 110 (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall forward to the NIMS Insurer and the Class R Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items Trustee shall deliver to the NIMS Insurer and each Person who at any time during the calendar year was a Class R Certificateholder, if requested in writing by such Person, such information as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Class R Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Option One Mort Acceptance Corp Asset Back Cert Ser 2003 2)

Statements. Tenant (a) On each Distribution Date, based on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause prepare and post on its website at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇, a statement as to be furnished the following to Landlord:distributions made on such Distribution Date (a “Monthly Statement”): (i) As to each SPE Tenant: (a) within ninety (90) days after the end date of each Fiscal Year (commencing with such Distribution Date and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year Determination Date and containing a statement of profit and loss, a balance sheet, and a statement of cash flows LIBOR Determination Date for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Distribution Date; (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respectsClass, the financial position applicable Record Date and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowInterest Accrual Period; (iii) As the amount of the distribution made on such Distribution Date to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31Class of Certificates allocable to principal or reduction of Notional Amount, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowseparately identified; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end amount of the distribution made on such Distribution Date to the Holders of each Fiscal YearClass of Certificates allocable to interest or Class CE Distributable Amount, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)separately identified; (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenantthe Overcollateralization Amount, the result Overcollateralization Release Amount, the Overcollateralization Deficiency and the Targeted Overcollateralization Amount as of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of such Distribution Date and the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, Monthly Excess Interest Amount and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)Monthly Excess Cashflow Amount for such Distribution Date; (vi) the aggregate amount of servicing compensation received by the Servicer during the related Collection Period; (vii) the aggregate amount of Advances for the related Collection Period; (viii) the Pool Balance at the close of business at the end of the related Collection Period; (ix) the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (x) the number and aggregate unpaid principal balance of Mortgage Loans (a) 30 to 59 days past due on a contractual basis, (b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (xi) with respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Mortgage Loan, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (xii) the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xiii) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xiv) the aggregate amount of Prepayment Penalties collected (including amounts deposited in connection with the full or partial waiver of such Prepayment Penalties pursuant to Section 3.01) during the related Collection Period and the amounts thereof allocable to the Class P Certificates; (xv) the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xvi) the Certificate Principal Balance, or Notional Amount, as applicable, of each Class of Certificates, after giving effect to the distributions, and allocations of Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xvii) the Accrued Certificate Interest in respect of each Class of Fixed-Rate and Floating Rate Certificates for such Distribution Date, separately identifying the portions thereof attributable to Cap Carryover Amounts, and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xviii) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23; (xix) the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the last day of the related Collection Period; (xx) the amount of any Cap Payment, Net Swap Payments, Net Swap Receipts, Swap Termination Payments or Defaulted Swap Termination Payments, for such Distribution Date; (xxi) the amount of the Trustee Fee paid; (xxii) the Cap Carryover Amounts distributed on such Distribution Date and the portion thereof constituting Cap Carryover Amounts, the amount of all Cap Carryover Amounts covered by withdrawals from the Cap Carryover Reserve Account and the Swap Account and the amounts remaining after giving effect to distributions thereof on such Distribution Date; (xxiii) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xxiv) whether a Trigger Event has occurred and is continuing (including the calculation thereof and the aggregate outstanding balance of all 60+ Day Delinquent Mortgage Loans) and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xxv) the Interest Remittance Amount and the Principal Remittance Amount; (xxvi) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxvii) [Reserved]; (xxviii) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer or Seller during the related Collection Period and indicating the Section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; (xxix) the aggregate Principal Balance of the Mortgage Loans repurchased by the Servicer (or an affiliate) during the related Collection Period in connection with Section 3.16; (xxx) the amount of Subsequent Recoveries received during the related Prepayment Period; (xxxi) whether a 40-Year Trigger Event has occurred and is continuing; (xxxii) material breaches of Mortgage Loan representations and warranties of which the Trustee or Servicer has knowledge or has received written notice; and (xxxiii) material breaches of any covenants under this Agreement of which the Trustee or Servicer has knowledge or has received written notice. Parties that are unable to use ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ are entitled to have a paper copy mailed to them via first class mail by calling the Trustee’s transaction manager at (▇▇▇) ▇▇▇-▇▇▇▇ and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Mortgage Loans provided by the Servicer. In the case of information furnished pursuant to subclauses (iii) through (v) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount of depreciation and Trustee shall furnish to each Person who at any improvements theretotime during the calendar year was a Certificateholder (other than the Residual Certificateholders), substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (iii), it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology (iv), (xvii) and (xxii) above, aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports made available to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected Certificateholders pursuant to result in a material adverse effect on Tenant or Section 4.06(b) in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description Trustee deems necessary or appropriate. Such obligation of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished to Landlord no later than fifty-five (55) days following Residual Certificateholders by the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (C-Bass 2007-Cb5 Trust)

Statements. Tenant (a) No later than each Servicing Report Date, the Servicer shall furnish or cause deliver to be furnished the Indenture Trustee, the Depositor and the Seller the Servicing Report. (1) Based on the information provided by the Servicer in the Servicing Report, no later than two (2) Business Days before each Payment Date, the Indenture Trustee shall prepare and distribute a monthly statement (the "Monthly Statement"), with respect to such Payment Date to the Seller, the Depositor, the Securityholders and each Rating Agency, stating the date of original issuance of the Securities (day, month and year), the name of the Issuer (i.e., "United National Home Loan Owner Trust 1999-1"), the series designation of the Securities (i.e., "Series 1999-1"), the date of this Agreement and the following to Landlordinformation: (i) As to each SPE Tenant: (a) within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments Available Collection Amount and the absence of footnotes)Regular Payment Amount for the related Payment Date; (ii) As the Class Principal Balance or Notional Balance of each Class of Securities and the Pool Principal Balance as of the first day of the related Due Period and after giving effect to CEOC:payments and distributions made to the holders of such Securities on such Payment Date; (iii) the Class Pool Factor with respect to each Class of Securities then outstanding, carried to seven decimal places; (iv) the amount of principal and interest received on the Home Loans during the related Due Period; (v) the Servicing Fee for such Payment Date; (vi) the amount, if any, paid on such Payment Date to each Class of Securities in respect of Deferred Amounts; (vii) with respect to each Class of Securities the amount of any applicable Deferred Amounts remaining unreimbursed after giving effect to payments made on such Payment Date; (viii) the weighted average remaining term to maturity of the Home Loans and the weighted average Home Loan Interest Rate of the Home Loans each as of such Payment Date; (ix) certain performance information, including delinquency and foreclosure information with respect to the Home Loans, as set forth in the Monthly Statement; (x) the amount of Nonrecoverable Advances reimbursed to the Servicer; (xi) the number of and aggregate Principal Balance of all Home Loans in foreclosure proceedings (other than any Home Loans described in clause (xvi)) and the percent of the aggregate Principal Balances of such Home Loans to the aggregate Principal Balances of all Home Loans, all as of the close of business on the last day of the related Due Period; (xii) the number of and the aggregate Principal Balance of the Home Loans in bankruptcy proceedings (other than any Home Loans described in clause (xvii)) and the percent of the aggregate Principal Balances of such Home Loans to the aggregate Principal Balances of all Home Loans, all as of the close of business on the last day of the related Due Period; (xiii) the number of Foreclosure Properties, the aggregate Principal Balance of the related Home Loans, the book value of such Foreclosure Properties and the percent of the aggregate Principal Balances of such Home Loans to the aggregate Principal Balances of all Home Loans, all as of the close of business on the last day of the related Due Period; (xiv) during the related Due Period, the aggregate Principal Balance of Home Loans for each of the following: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP became Liquidated Home Loans and (B) that became Deleted Home Loans pursuant to Section 3.05 as a result of such Deleted Home Loans being Liquidated Home Loans or a Home Loan in foreclosure, default or imminent default, including the audit foregoing amounts by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadlineloan type; (Bxv) quarterly unaudited financial statementsfrom the Cut-Off Date through the most current Due Period, consisting the cumulative aggregate Principal Balance of a statement Home Loans for each of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC following: (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretobecame Liquidated Home Loans, and (B) certifying that became Deleted Home Loans pursuant to Section 3.05 as a result of such Financial Statements fairly presentDeleted Home Loans being in foreclosure, default or imminent default; (xvi) the scheduled principal payments and the principal prepayments received with respect to the Home Loans during the related Due Period; (xvii) the number of Home Loans remaining in all material respectsthe Home Loan Pool; (xviii) the Cumulative Losses; and (xix) such other information as may be reasonably requested by the Indenture Trustee, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP Issuer or the Residual Interest Certificateholder. (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x2) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event No later than five two (52) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (Ceach Payment Date, the Indenture Trustee shall prepare and distribute to the Seller, the Depositor and each Rating Agency a monthly statement that includes the cumulative aggregate Principal Balance of Home Loans that became Deleted Home Loans pursuant to Section 3.05(c) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federalresult of such Deleted Home Loans being Defective Home Loans, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) below;from the Closing Date through the most current Due Period. (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event No later than five seven days following a repurchase or substitution pursuant to Sections 2.06, 3.05 or 4.02, the Indenture Trustee shall notify each Rating Agency of the aggregate principal balances of the Home Loans repurchased or substituted and (5if applicable) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional the relevant Substitution Adjustment. All reports prepared by the Indenture Trustee of the withdrawals from and deposits in the Collection Account will be based in whole or in part upon the information and unaudited quarterly financial information concerning provided to the Leased Property and Tenant, which information shall be limited to balance sheets, income statementsIndenture Trustee by the Servicer, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT the Indenture Trustee may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act fully rely upon and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in shall have no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility liability with respect to such Fiscal Year (subject to information provided by the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder);Servicer. (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vic) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount of depreciation Indenture Trustee shall prepare and distribute to each Person who at any improvements theretotime during the calendar year was a Securityholder, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (b)(iii) and (iv) above, it being understood that Tenant may classify any asset additions in accordance with aggregated for such calendar year or applicable portion thereof during which such Person was a Securityholder. (d) On each Payment Date, the fixed asset methodology for propco-opco separation used as Indenture Trustee shall forward to DTC and to the Holder of each Security a copy of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Monthly Statement in respect of any Facility)such Payment Date and a statement setting forth the amounts actually distributed to the holder of such Security on such Payment Date, a written notice to Landlord regarding together with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Indenture Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiie) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Indenture Trustee shall prepare and distribute to each SPE Tenant: (A) Person who at any time during the calendar year was the Holder of a rent roll for the subject monthSecurity, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and a summary previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was the holder of all leasing activity then taking place at each Facility;such Security. (xiiif) Operating budget for Upon reasonable advance notice in writing, the Servicer will provide to each SPE Tenant for each Fiscal YearSecurityholder which is a savings and loan association, which shall be delivered bank or insurance company access to Landlord no later than fifty-five (55) days following information and documentation regarding the commencement Home Loans sufficient to permit such Securityholder to comply with applicable regulations of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (FDIC or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant other regulatory authorities with respect to each SPE Tenant as may be reasonably requested by Landlord;investment in such Securities. (xvg) The quarterly reporting in respect of Bookings required pursuant Indenture Trustee shall furnish to Section 22.7 each Securityholder, during the term of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices Agreement, such periodic, special, or reporting other reports, including information tax returns or reports required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereofSecurities, Tenant including Internal Revenue Service Forms 1099 and (if instructed in writing by the Issuer on the basis of the advice of legal counsel) and other similar reports that are required to be filed by the Indenture Trustee or its Affiliates agent and the Holder of the Certificates, whether or not provided for herein, as shall be necessary, reasonable, or appropriate with respect to the Securityholders, or otherwise with respect to the purposes of this Agreement, all such reports or information to be provided by and in accordance with such applicable instructions and directions as the Securityholders may reasonably require. (excluding (ih) any material non-public information, (ii) any Competitively Sensitive InformationReports and computer tapes furnished by the Servicer and the Indenture Trustee pursuant to this Agreement shall be deemed confidential and of proprietary nature, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) copied or (iii) distributed except in connection with the purposes and requirements of this parenthetical), Agreement. No Person entitled to receive copies of such reports or tapes shall use the extent reasonably requested by such Fee Mortgagee in order to satisfy information therein for the market standards to which such Fee Mortgagee customarily adheres purpose of soliciting the customers of the Seller or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (Servicer or for any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared purpose except as set forth in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementthis Agreement.

Appears in 1 contract

Sources: Sale and Servicing Agreement (Bear Stearns Asset Backed Securities Inc)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Master Servicer, the Trustee shall furnish or cause prepare and make available by electronic medium (as set forth in the penultimate paragraph of this Section 4.03(a)) to be furnished each Holder of the following Regular Certificates, the Trustee, the Master Servicer, the NIMS Insurer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Master Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotesClass P Certificates), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31allocable to interest, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool, for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Master Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)reserved; (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the aggregate amount of depreciation and any improvements thereto, substantially in Advances for the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Daterelated Due Period; (vii) Within three (3) Business Days of obtaining actual knowledge the aggregate Stated Principal Balance of the occurrence Mortgage Loans at the Close of a Tenant Event of Default (or Business at the end of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances)related Due Period; (viii) Such additional customary the number, aggregate principal balance, weighted average remaining term to maturity and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee weighted average Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation Rate of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after Mortgage Loans as of the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit Irelated Determination Date; (ix) The compliance certificatesthe number and aggregate unpaid principal balance of Mortgage Loans (a) delinquent 30-59 days, (b) delinquent 60-89 days, (c) delinquent 90 or more days in each case, as of the last day of the preceding calendar month provided, however that any aggregate unpaid principal balance of Mortgage Loans shall be reported as of the last day of the related Due Period, (d) as to which foreclosure proceedings have been commenced and when required pursuant (e) with respect to Section 4.3which the related Mortgagor has filed for protection under applicable bankruptcy laws, with respect to whom bankruptcy proceedings are pending or with respect to whom bankruptcy protection is in force; (x) The Annual Capital Budget with respect to any Mortgage Loan that became an REO Property during the preceding Prepayment Period, the unpaid principal balance and the Principal Balance of such Mortgage Loan as and when required in Section 10.5(d)of the date it became an REO Property; (xi) The monthly revenue the total number and Capital Expenditure reporting required pursuant to Section 10.5(c)cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xii) Together with the monthly reporting required pursuant to aggregate amount of Principal Prepayments made during the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facilityrelated Prepayment Period; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement aggregate amount of Realized Losses incurred during the Fiscal Year to which such operating budget relatesrelated Prepayment Period and the cumulative amount of Realized Losses; (xiv) Within five (5) Business Days after request (the aggregate amount of Extraordinary Trust Fund expenses withdrawn from the Collection Account or as soon thereafter as may be reasonably possible), the Distribution Account for such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by LandlordDistribution Date; (xv) The quarterly reporting the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date, and the Notional Amount of the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xvi) the Monthly Interest Distributable Amount in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by TenantClass A Certificates, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Mezzanine Certificates and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) aboveClass C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitizationif any, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, Class A Certificates and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if Mezzanine Certificates for such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial StatementDistribution Date;

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Long Beach Securities Corp Asset Back Certs Ser 2003-3)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Master Servicer, the Trustee shall furnish or cause prepare and make available by electronic medium (as set forth in the penultimate paragraph of this Section 4.03(a)) to be furnished each Holder of the following Regular Certificates, the Trustee, the Master Servicer, the NIMS Insurer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Master Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotesClass P Certificates), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31allocable to interest, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool, for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Master Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)reserved; (vi) the aggregate amount of Advances for the related Due Period; (vii) the aggregate Stated Principal Balance of the Mortgage Loans at the Close of Business at the end of the related Due Period; (viii) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (ix) the number and aggregate unpaid principal balance of Mortgage Loans (a) delinquent 30-59 days, (b) delinquent 60-89 days, (c) delinquent 90 or more days in each case, as of the last day of the preceding calendar month provided, however that any aggregate unpaid principal balance of Mortgage Loans shall be reported as of the last day of the related Due Period, (d) as to which foreclosure proceedings have been commenced and (e) with respect to which the related Mortgagor has filed for protection under applicable bankruptcy laws, with respect to whom bankruptcy proceedings are pending or with respect to whom bankruptcy protection is in force; (x) with respect to any Mortgage Loan that became an REO Property during the preceding Prepayment Period, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (xi) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xii) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xiii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xiv) the aggregate amount of Extraordinary Trust Fund expenses withdrawn from the Collection Account or the Distribution Account for such Distribution Date; (xv) the Certificate Principal Balance of the Class AV Certificates, the Mezzanine Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date, and the Notional Amount of the Class C Certificates, after giving effect to the distributions made on such Distribution Date; 105 (xvi) the Monthly Interest Distributable Amount in respect of the Class AV Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class AV Certificates and the Mezzanine Certificates for such Distribution Date; (xvii) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Master Servicer pursuant to Section 3.24, and the aggregate amount of any Relief Act Interest Shortfalls for such Distribution Date; (xviii) the Credit Enhancement Percentage for such Distribution Date; (xix) the Net WAC Rate Carryover Amount for the Class AV Certificates and the Mezzanine Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xx) the Trustee Fee on such Distribution Date; (xxi) whether a Stepdown Date or a Trigger Event has occurred; (xxii) the Available Funds; (xxiii) the respective Pass-Through Rates applicable to the Class AV Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to the Class AV Certificates and the Mezzanine Certificates for the immediately succeeding Distribution Date; (xxiv) reserved; (xxv) any other information that is required by the Code and regulations thereunder to be made available to Certificateholders; (xxvi) the amount on deposit in the Reserve Fund; (A) the dollar amount of payments received related to claims under the PMI Policy during the related Prepayment Period (and the number of Mortgage Loans to which such payments related) and (B) the aggregate dollar amount of payments received related to claims under the PMI Policy since the Cut-off Date (and the number of Mortgage Loans to which such payments related); (A) the dollar amount of claims made under the PMI Policy that were denied during the related Prepayment Period (and the number of Mortgage Loans to which such denials related) and (B) the aggregate dollar amount of claims made under the PMI Policy that were denied since the Cut-off Date (and the number of Mortgage Loans to which such denials related); and (xxix) for such Distribution Date, the amount of any payment made by the Cap Provider under the Cap Agreement. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the Master Servicer, the NIMS Insurer and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at https://www.corporatetrust.db.com/i▇▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇an be obtained by calling the Trustee's customer service desk at 1-800-735-7777. Parties that are un▇▇▇▇ ▇▇ ▇▇▇ ▇▇e above distribution options are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Closing Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall forward to the Holders of the occurrence of Residual Certificates and the NIMS Insurer a Tenant Event of Default (or copy of the occurrence of any facts or circumstances which, with reports forwarded to the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthHolder of a Residual Certificate, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Holder of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which a Residual Certificate. Such obligation of the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent 107 that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision requirements of this Lease;the Code as from time to time in force. (xviiie) The monthly reporting required pursuant to Section 4.1 hereof; On each Distribution Date the Trustee shall provide Bloomberg Financial Markets, L.P. (xix"Bloomberg") Semi-annual property-CUSIP level betting & gaming revenue information received pursuant to Section 10.2 factors for each Class of the MTSA by TenantCertificates as of such Distribution Date, ERI or any direct or indirect subsidiary of ERI using a format and media mutually acceptable to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Trustee and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial StatementBloomberg.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Long Beach Securities Corp Certs Series 2003-4)

Statements. Tenant (a) On each Distribution Date, based on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause prepare and post on its website at ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇, a statement (the "Distribution Date Statement") as to be furnished the following to Landlorddistributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to the Holders of each SPE Tenant: Class of Certificates allocable to principal or reduction of Principal Balance, separately identified and the amount of the distribution made on such Distribution Date to the Holders of the Class P Certificates allocable to Prepayment Charges, Servicer Prepayment Charge Payment Amounts and Transferor Prepayment Charge Payment Amounts; (ii) the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to interest or Class CE Distributable Amount, separately identified; (iii) the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Targeted Overcollateralization Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by the Servicer during the related Collection Period; (v) the aggregate amount of Advances for the related Collection Period, cumulative unreimbursed Advances and Servicing Advances and cumulative Nonrecoverable Advances; (vi) the Pool Balance, at the close of business at the end of the related Collection Period; (vii) the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans (a) within ninety (90) 30 to 59 days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31past due on a contractual basis, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty 60 to 89 days past due on a contractual basis, (60c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) with respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Mortgage Loan, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Collection Period, the cumulative amount of Realized Losses and the aggregate amount of Subsequent Recoveries received during the related Collection Period and the cumulative amount of Subsequent Recoveries; (xiii) the Certificate Principal Balance, or Principal Balance, as applicable, of each Class of Certificates, after giving effect to the distributions, and allocations of Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xiv) the Accrued Certificate Interest in respect of each Class of Certificates for such Distribution Date and any related Net WAC Rate Carryover Amounts, and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23; (xvi) the amount of the Trustee Fee paid; (xvii) the Net WAC Rate Carryover Amount for each Class distributed on such Distribution Date, the amount of Net WAC Rate Carryover Amount remaining after giving effect to distributions thereof on such Distribution Date and the amount of all Net WAC Rate Carryover Amounts on the Class M-3, Class M-4, Class M-5, Class M-6 and Class M-7 Certificates covered by withdrawals from the Reserve Account on such Distribution Date; (xviii) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (A) whether a Trigger Event has occurred and is continuing, (B) the Credit Enhancement Percentage, (C) the three-month rolling average percentage of the Pool Balance, as of the end of each of the first preceding three Collection Periods, represented by the aggregate Principal Balance of all 60+ Day Delinquent Loans, (3D) Fiscal Quarters of each Fiscal Year the percentage obtained by dividing such percentage reported pursuant to (commencing with C) by the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheetCredit Enhancement Percentage, and (E) the cumulative Realized Losses, as a statement percentage of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)original Pool Balance; (iixx) As to CEOC:the amount of Available Funds for such Distribution Date; (Axxi) annual financial statements audited the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxii) the information contained in the Liquidation Report for such Distribution Date; (xxiii) the aggregate Principal Balance of Mortgage Loans purchased by CEOC’s Accountant in accordance with GAAP covering the Servicer or Seller during the related Prepayment Period and indicating the Section of this Agreement requiring or allowing the purchase of each such Fiscal Year and containing statement Mortgage Loan; 100 (xxiv) the aggregate Principal Balance of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon the Mortgage Loans repurchased by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at Servicer during the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant related Prepayment Period in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadlineSection 3.16; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (ixxv) the SEC under both Mortgage Loan identifying number of each Mortgage Loan with a Prepayment Charge that was the Securities Act subject of a Principal Prepayment in full during the related Collection Period, the Prepayment Charge listed on, or calculated pursuant to, each related Mortgage Note and the Exchange Act, including, but not limited Prepayment Charge collected and/or the Servicer Prepayment Charge Payment Amount paid by the Servicer or Transferor Prepayment Charge Payment Amount paid by the Transferor with respect to 10-Q Quarterly Reports, 10-K Annual Reports each such Mortgage Loan. The Trustee may fully rely upon and registration statements shall have no liability with respect to be filed information with respect to the Mortgage Loans provided by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) Servicer. In the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause information furnished pursuant to subclauses (i), (ii) and (iii)xiii) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant the amounts shall be expressed in accordance with GAAP covering such Fiscal Year and containing statement a separate section of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope a dollar amount for each Class for each $1,000 original dollar amount as of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and Cut-off Date. (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end Within a reasonable period of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of necessary to provide to such Person a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and statement containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses set forth in subclauses (i), (ii) or (iii) of this parenthetical), (xiv) and (xvii) above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Trustee shall be deemed to have been satisfied to the extent reasonably requested that substantially comparable information shall be prepared and furnished by such Fee Mortgagee the Trustee to Certificateholders pursuant to any requirements of the Code as are in order force from time to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; andtime. (Bc) reviewOn each Distribution Date, re-review and, the Trustee shall make available to the Class R Certificateholder a copy of the reports made available to the Regular Certificateholders in respect of such Distribution Date with such other information as the Trustee deems necessary or appropriate. Such obligation of the Trustee shall be deemed to have been satisfied to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any substantially comparable information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared and furnished to Class R Certificateholder by the Trustee pursuant to any requirements of the Code as from time to time in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Asset Backed Funding Corp Abfc Asset Backed Ser 2004-Ahl1)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause prepare and post on its website at ▇▇▇.▇▇▇▇▇▇.▇▇▇, a statement as to be furnished the following to Landlorddistributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to the Holders of each SPE Tenant: Class of Certificates allocable to principal or reduction of Notional Amount, separately identified; (ii) the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to interest or Class X Distributable Amount, separately identified; (iii) the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Targeted Overcollateralization Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by the Servicer during the related Collection Period; (v) the aggregate amount of Advances for the related Collection Period; (vi) the Pool Balance and the Loan Group Balance for each Loan Group at the close of business at the end of the related Collection Period; (vii) separately stated for each Loan Group, the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) separately stated for each Loan Group, the number and aggregate unpaid principal balance of Mortgage Loans (a) within ninety 30 to 59 days past due on a contractual basis, (90b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) separately stated for each Loan Group, with respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Mortgage Loan, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) separately stated for each Loan Group, the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) separately stated for each Loan Group, the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of prepayment penalties collected (including amounts deposited in connection with the full or partial waiver of such prepayment penalties pursuant to Section 3.01) during the related Collection Period and the amounts thereof allocable to the Class N Certificates and the Class X Certificates; (xiii) separately stated for each Loan Group, the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiv) the Certificate Principal Balance, or Notional Amount, as applicable, of each Class of Certificates, after giving effect to the distributions, and allocations of Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xv) the Accrued Certificate Interest in respect of each Class of Offered Certificates and Class B-5 and Class B-6 Certificates for such Distribution Date, separately identifying the portions thereof attributable to Net WAC Carryover Amounts, and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23; (xvii) any amounts to be deposited in the Reserve Account pursuant to the Cap Contract as described in Section 4.02(f) and the amount thereof to be paid to the Class M-1, Class M-2, Class M-3 or Class M-4 Certificates; (xviii) [Reserved]; (xix) the amount of the Trustee Fee paid; (xx) the Net WAC Carryover Amounts distributed on such Distribution Date; (xxi) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xxii) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xxiii) the Available Funds; (xxiv) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxv) the Liquidation Report for such Distribution Date; (xxvi) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer or Seller during the related Collection Period and indicating the Section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; and (xxvii) the aggregate Principal Balance of the Mortgage Loans repurchased by the Servicer (or an affiliate) during the related Collection Period in connection with Section 3.16. Parties that are unable to use ▇▇▇.▇▇▇▇▇▇.▇▇▇ are entitled to have a paper copy mailed to them via first class mail by calling the Trustee at (651) 495-3847 and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Mortgage Loans provided by the Servicer. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within a reasonable period of time after the end of each Fiscal Year (commencing with calendar year, the Fiscal Year ending December 31Trustee shall furnish to each Person who at any time during the calendar year was a Certificateholder of a Regular Certificate, 2017)if requested in writing by such Person, but if Guarantor such information as is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering reasonably necessary to provide to such Fiscal Year and containing Person a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after containing the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, information set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes); (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause subclauses (i), (ii), (xv) and (iii)xx) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering aggregated for such Fiscal Year and containing statement calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which Trustee shall be unqualified as deemed to scope of audit of ERI and its Subsidiaries and shall provide in substance have been satisfied to the extent that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which substantially comparable information shall be limited prepared and furnished by the Trustee to balance sheetsCertificateholders pursuant to any requirements of the Code as are in force from time to time. (c) On each Distribution Date, income statements, and statements the Trustee shall make available to the Residual Certificateholders a copy of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or the reports made available to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including Regular Certificateholders in respect of Landlord REIT’s qualification such Distribution Date with such other information as a REIT) and (iii) any other federal, state the Trustee deems necessary or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect appropriate. Such obligation of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished to Landlord no later than fifty-five (55) days following Residual Certificateholders by the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (C-Bass Mortgage Loan Asset-Backed Certificates, Series 2005-Cb3)

Statements. Tenant (a) On each Distribution Date, the Trustee shall furnish or cause make available to each Certificateholder, the Seller and the Rating Agency, a statement based, as applicable, on loan-level information obtained from the Servicer (the “Distribution Date Statement”) as to the distributions to be furnished the following to Landlordmade or made, as applicable, on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement Class of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect Certificates allocable to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)principal; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting Class of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed Certificates allocable to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowinterest; (iii) As the Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage and Subordinate Prepayment Percentage with respect to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow each Loan Group for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowfollowing Distribution Date; (iv) As soon the amount of servicing compensation received by the Servicer during the related Due Period and such other customary information as it is prepared and in no event later than sixty (60) days after the end of each Fiscal YearTrustee deems necessary or desirable, or which a statement of Net Revenue with respect Certificateholder reasonably requests, to each Facility with respect enable Certificateholders to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any Advances for the related Due Period and the amount of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)unreimbursed Advances; (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costSpecial Hazard Loss Coverage Amount, the amount of depreciation Fraud Loss Coverage Amount and any improvements theretothe Bankruptcy Loss Coverage Amount, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used each as of the Commencement related Determination Date; (vii) Within three (3) the Loan Group Balance and related Net WAC for each Loan Group at the Close of Business Days of obtaining actual knowledge at the end of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances)related Due Period; (viii) Such additional customary [Reserved]; (ix) for each Loan Group, the aggregate Principal Balance of the One-Year LIBOR Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (x) for each Loan Group, the aggregate Principal Balance of the One-Year CMT Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (xi) for each Loan Group, the number, weighted average remaining term to maturity and reasonable financial information weighted average Loan Rate of the related Mortgage Loans as of the related Due Date; (xii) the number and aggregate unpaid principal balance of Mortgage Loans, in the aggregate and for each Loan Group, (a) 30 to any Facility59 days Delinquent, Tenant(b) 60 to 89 days Delinquent, CEOC(c) 90 or more days Delinquent, ERI (d) as to which foreclosure proceedings have been commenced and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder)e) in bankruptcy, in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord close of business on or before twenty-five (25) days after the end last day of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each preceding calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statement

Appears in 1 contract

Sources: Pooling and Servicing Agreement (HarborView Mortgage Loan Trust 2004-3)

Statements. Tenant (a) Concurrently with each distribution to Securityholders, the Trust Administrator shall furnish or cause make available to each Securityholder, the Seller, the Cap Provider, the Owner Trustee and the Rating Agency, a statement based on loan-level information provided to the Master Servicer by the Servicer (the “Payment Date Statement”) as to the distributions to be furnished made or made, as applicable, on such Payment Date. Information in the following Payment Date Statement relating to Landlordor based on amounts available in the Cap Account shall be based on information provided by the Cap Provider regarding distributions to be made for the related Payment Date pursuant to the Cap Agreement. The Payment Date Statement will include the following: (i) As the aggregate amount of the payment to each SPE Tenant: (a) within ninety (90) days after be made on such Payment Date to the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement Class of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statementsNotes, to the extent required as an Additional Fee Mortgagee Requirementapplicable, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, allocable to normal year-end audit adjustments and the absence of footnotes)principal; (ii) As the aggregate amount of the payment to CEOC:be made on such Payment Date to the Holders of each Class of Notes allocable to interest and the calculation thereof; (iii) the amount, if any, of any distribution to the Holders of the Trust Certificate; (A) annual financial statements audited the aggregate amount of any Monthly Advances required to be made by CEOC’s Accountant in accordance or on behalf of the Servicer (or the Master Servicer) with GAAP covering respect to such Fiscal Year and containing statement Payment Date, (B) the aggregate amount of profit and loss, a balance sheetsuch Monthly Advances actually made, and statement of cash flows for CEOC(C) the amount, together with (1) a report thereon if any, by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and above exceeds (B) that above; (v) the audit by such Accountant total number of Mortgage Loans in connection with such Financial Statements has been made the aggregate and the aggregate Scheduled Principal Balance, after giving effect to payments of principal reported under clause (i) above, in accordance with GAAP and (2) a certificate, executed by each case at the chief financial officer or treasurer close of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after business at the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadlinerelated Due Period; (Bvi) quarterly unaudited financial statementsthe Class Principal Amount of each Class of Notes, consisting to the extent applicable, as of a statement such Payment Date after giving effect to payments allocated to principal reported under clause (i) above; (vii) the amount of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken Realized Losses incurred with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, to the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided Mortgage Loans (x) within sixty in the applicable Prepayment Period and (60y) in the aggregate since the Cut-off Date; (viii) the amount of the Master Servicing Fees and Servicing Fees paid during the Due Period to which such distribution relates; (ix) the number and aggregate Scheduled Principal Balance of Mortgage Loans, (a) delinquent 30 to 59 days after on a contractual basis, (b) delinquent 60 to 89 days on a contractual basis, (c) delinquent 90 or more days on a contractual basis, (d) as to which foreclosure proceedings have been commenced in the end month in which such Payment Date occurs, in each case as of the close of business on the last Business Day of the calendar month immediately preceding, (e) in bankruptcy and (f) that are REO Properties; (x) the aggregate Scheduled Principal Balance of any Mortgage Loans with respect to which the related Mortgaged Property became a REO Property as of the close of business on the last Business Day of the calendar month immediately preceding the month in which such Payment Date occurs; (xi) with respect to substitution of Mortgage Loans in the preceding calendar month, the Scheduled Principal Balance of each of the first three (3) Fiscal Quarters Deleted Mortgage Loan, and of each Fiscal Year Qualified Substitute Mortgage Loan; (commencing xii) the amount of any Basis Risk Shortfall and Unpaid Basis Risk Shortfall, if any, with respect to each Class of Notes, after giving effect to payments made on such Payment Date; (xiii) the Fiscal Quarter ending March 31Note Interest Rate applicable to such Payment Date with respect to each Class of Notes; (xiv) the Interest Remittance Amount and the Principal Remittance Amount applicable to such Payment Date; (xv) the Overcollateralization Amount, 2018the Overcollateralization Deficiency, if any, the Principal Distribution Amount and the Extra Principal Distribution Amount for such Payment Date; (xvi) but with respect to the Class M-1 and Class M-2 Certificates, the Deferred Interest and Principal Deficiency Amount, if Guarantor is not a reporting company under any, for each such Class; (xvii) the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadlinelevel of LIBOR for the Accrual Period for the current Payment Date and the level of LIBOR for the Accrual Period for the next Payment Date; and (Cxviii) any Cap Payments made for such additional information and unaudited quarterly financial information concerning period, the Leased Property and Tenant, which information shall be limited to notional balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) on the SEC under both the Securities Act Cap Agreement and the Exchange ActExcess Cap Amount, includingif any, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during for such Payment Date. In the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause information furnished pursuant to subclauses (i), (ii) and (iii)vi) above, subject the amounts shall also be expressed as a dollar amount per $1,000 of original principal amount of Notes. The Trust Administrator will make the Payment Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Section 23.1(cSecurityholders and the other parties to this Agreement via the Trust Administrator’s internet website. The Trust Administrator’s internet website shall initially be located at “▇▇▇.▇▇▇▇▇▇▇.▇▇▇.” Assistance in using the website can be obtained by calling the Trust Administrator’s customer service desk at (▇▇▇) below; (iii) As ▇▇▇-▇▇▇▇. Parties that are unable to ERI: (A) annual financial statements audited use the above distribution option are entitled to have a paper copy mailed to them via first class mail by ERI’s Accountant calling the customer service desk and indicating such. The Trust Administrator shall have the right to change the way such reports are distributed in accordance with GAAP covering order to make such Fiscal Year and containing statement of profit and loss, a balance sheetdistribution more convenient and/or more accessible to the parties, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and Trust Administrator shall provide in substance that (a) timely and adequate notification to all parties regarding any such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and change. (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end Within a reasonable period of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount of depreciation and Trust Administrator shall, upon written request, furnish to each Person who at any improvements theretotime during the calendar year was a Securityholder, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as necessary to provide to such Person a statement containing aggregate payment information necessary to enable Holders of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge Securities to prepare their tax returns. Such obligation of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trust Administrator shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished by the Trust Administrator to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Securityholders pursuant to any other provision requirements of this Lease;the Code as are in force from time to time. (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xxc) On each Payment Date, the Trust Administrator shall supply an annual electronic tape to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg Financial Markets, Inc. on a monthly basis, and shall supply an electronic tape to Loan Performance and Intex Solutions in a detailed reconciliation of the financial information being provided format acceptable to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Loan Performance and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described Intex Solutions on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementmonthly basis.

Appears in 1 contract

Sources: Sale and Servicing Agreement (New York Mortgage Trust 2005-2)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause prepare and post on its website at www.chase.com/absmbs, a statement as to be furnished the following to Landlorddistributions made on suc▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇: (i) As the amount of the distribution made on such Distribution Date to the Holders of each SPE Tenant: Class of Certificates allocable to principal or reduction of the Class N Notional Amount, separately identified; (ii) the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to interest or Class X Distributable Amount, separately identified; (iii) the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Overcollateralization Target Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by the Servicer during the related Collection Period and accrued and unpaid Special Servicing Fees; (v) the aggregate amount of Advances for the related Collection Period; (vi) the Pool Balance at the close of business at the end of the related Collection Period; (vii) the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans (a) within ninety 30 to 59 days past due on a contractual basis, (90b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) with respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Mortgage Loan, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of prepayment penalties collected or deposits by the Seller in lieu thereof pursuant to Section 3.01 during the related Collection Period and the amounts thereof allocable to the Class N Certificates and the Class X Certificates; (xiii) the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiv) the Certificate Principal Balance, or Notional Amount, as applicable, of each Class of Certificates, after giving effect to the distributions, and allocations of Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xv) the beginning balance of amounts on deposit in the Excess Reserve Fund as of the preceding Distribution Date, any withdrawals from and deposits into the Excess Reserve Fund as of the Distribution Date, and the ending balance of amounts on deposit in the Excess Reserve Fund on such Distribution Date; (xvi) [Reserved]; (xvii) the Accrued Certificate Interest in respect of each Class of Offered Certificates and the Class B-2 Certificates for such Distribution Date, separately identifying the portions thereof attributable to Rate Payments, and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xviii) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23; (xix) [Reserved]; (xx) the Principal Balance of the Re-performing 60+ Day Delinquent Loans; (xxi) the amount of the Trustee Fee paid; (xxii) Class A-1A LIBOR Carryover Amounts for the Class A-1A Certificates distributed on such Distribution Date and the amounts remaining after giving effect to distributions thereof on such Distribution Date; (xxiii) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xxiv) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xxv) the Available Funds; (xxvi) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxvii) the Liquidation Report for such Distribution Date; (xxviii) [Reserved] (xxix) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer or Seller during the related Collection Period and indicating the Section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; and (xxx) the aggregate Principal Balance of the Mortgage Loans repurchased by the Seller during the related Collection Period in connection with Section 3.16. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Mortgage Loans provided by the Servicer. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate Section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-Off Date. (b) Within a reasonable period of time after the end of each Fiscal Year (commencing with calendar year, the Fiscal Year ending December 31Trustee shall furnish to each Person who at any time during the calendar year was a Certificateholder of a Regular Certificate, 2017)if requested in writing by such Person, but if Guarantor such information as is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering reasonably necessary to provide to such Fiscal Year and containing Person a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after containing the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, information set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes); (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause subclauses (i), (ii), (xv) and (iii)xx) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering aggregated for such Fiscal Year and containing statement calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which Trustee shall be unqualified as deemed to scope of audit of ERI and its Subsidiaries and shall provide in substance have been satisfied to the extent that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which substantially comparable information shall be limited prepared and furnished by the Trustee to balance sheetsCertificateholders pursuant to any requirements of the Code as are in force from time to time. (c) On each Distribution Date, income statements, the Trustee shall provide to the Class R and statements Class R-4 Certificateholders a copy of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or the reports provided to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including Regular Certificateholders in respect of Landlord REIT’s qualification such Distribution Date with such other information as a REIT) and (iii) any other federal, state the Trustee deems necessary or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect appropriate. Such obligation of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished to Landlord no later than fifty-five (55) days following Class R and Class R-4 Certificateholders by the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Residential Asset Funding Corp)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by each Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Servicers and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of servicing compensation received by each Fiscal Year, a statement of Net Revenue Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties, as well as the aggregate principal balance of Mortgage Loans that were liquidated and the net proceeds resulting therefrom; (ix) [reserved]; (x) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period and the number and aggregate Stated Principal Balance of all Subsequent Mortgage Loans added during the Funding Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period, separately indicating Principal Prepayments in full and Principal Prepayments in part; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses and the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the cumulative amount of Subsequent Recoveries received since the Closing Date; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of each Class of Floating Rate Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of each Class of Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to each Class of Floating Rate Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the related Servicer pursuant to Section 3.24; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for each Class of Floating Rate Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to each Class of Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Floating Rate Certificates for the immediately succeeding Distribution Date; (xxiii) payments, if any, made under the Cap Contract; and (xxiv) the amount on deposit in the Pre-Funding Account and the Interest Coverage Account; and (xxv) for the distribution occurring on the Distribution Date immediately following the end of the Funding Period, the balance on deposit in the Pre-Funding Account that has not been used to purchase Subsequent Mortgage Loans, as applicable, and that is being distributed to the Class A Certificates as a mandatory distribution of principal, if any, on such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the Rating Agencies via the Trustee’s internet website. The Trustee’s internet website shall initially be located at “h▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/▇▇▇▇”. Assistance in using the website can be obtained by calling the Trustee’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee’s internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthResidual Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Soundview Home Loan Trust 2005-2)

Statements. Tenant (a) On each Distribution Date, the Securities Administrator shall furnish or cause make available to the Trustee, each Certificateholder, the Seller, the Master Servicer and the Rating Agency, a statement based, as applicable, on loan-level information obtained from the Master Servicer and the Servicers (the “Distribution Date Statement”) as to the distributions to be furnished the following to Landlordmade or made, as applicable, on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement Class of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect Certificates allocable to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)principal; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting Class of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed Certificates allocable to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowinterest; (iii) As the Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage and Subordinate Prepayment Percentage with respect to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow each Loan Group for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowfollowing Distribution Date; (iv) As soon the aggregate amount of servicing compensation received by each Servicer during the related Due Period and such other customary information as it is prepared and in no event later than sixty (60) days after the end of each Fiscal YearTrustee deems necessary or desirable, or which a statement of Net Revenue with respect Certificateholder reasonably requests, to each Facility with respect enable Certificateholders to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any Advances for the related Due Period and the amount of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)unreimbursed Advances; (vi) the Special Hazard Loss Coverage Amount, the Fraud Loss Coverage Amount and the Bankruptcy Loss Coverage Amount, each as of the related Determination Date; (vii) the Loan Group Balance and related Net WAC for each Loan Group at the Close of Business at the end of the related Due Period; (viii) for each Loan Group, the aggregate Principal Balance of the One-Year CMT Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (ix) for each Loan Group, the aggregate Principal Balance of the One-Month LIBOR Indexed, Six-Month LIBOR Indexed and One-Year LIBOR Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (x) [Reserved]; (xi) for each Loan Group, the number, weighted average remaining term to maturity and weighted average Loan Rate of the related Mortgage Loans as of the related Due Date; (xii) the number and aggregate unpaid principal balance of Mortgage Loans, in the aggregate and for each Loan Group, (a) 30 to 59 days Delinquent, (b) 60 to 89 days Delinquent, (c) 90 or more days Delinquent, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy, in each case as of the close of business on the last day of the preceding calendar month; (xiii) the book value of any REO Property as of the Close of Business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties in each Loan Group as of the Close of Business of the last day of the preceding Due Period; (xiv) the aggregate amount of Principal Prepayments and Prepayment Penalty Amounts with respect to each Loan Group made during the related Prepayment Period; (xv) the aggregate amount of Realized Losses incurred during the related Due Period and the cumulative amount of Realized Losses; (xvi) the Class Certificate Principal Balance or Class Certificate Notional Amount, as applicable, of each Class of Certificates and the Apportioned Principal Balances of the Subordinate Certificates after giving effect to any distributions made thereon, on such Distribution Date; (xvii) the Interest Distributable Amount in respect of each Class of Certificates, for such Distribution Date and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xviii) the aggregate amount of any Net Interest Shortfalls and the Unpaid Interest Shortfall Amount for such Distribution Date; (xix) the Available Funds with respect to each Loan Group; (xx) the Pass-Through Rate for each Class of Certificates for such Distribution Date; (xxi) the aggregate Principal Balance of Mortgage Loans purchased hereunder by the Seller during the related Due Period, and indicating the relevant section of the related Servicing Agreement, or the Section of this Agreement, as applicable, requiring or allowing the purchase of each such Mortgage Loan; (xxii) the amount of any Principal Deficiency Amounts or Accrued Interest Amounts paid to an Undercollateralized Group or amounts paid pursuant to Section 5.01(f)(i); (xxiii) current Recoveries allocable to each Loan Group; (xxiv) cumulative Recoveries allocable to each Loan Group; (xxv) the amount of any Basis Risk Shortfall or Unpaid Basis Risk Shortfall, if any, and the related accrued interest thereon, with respect to the LIBOR Certificates; and (xxvi) payments made under the Yield Maintenance Agreement, if any. The Securities Administrator will make the Distribution Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the other parties to this Agreement via the Securities Administrator’s internet website. The Securities Administrator’s internet website shall initially be located at “www.ctslink.com.” Assistance in using the website can be obtained by calling the Securities Administrator’s customer service desk at (301) ▇▇▇-▇▇▇▇. ▇▇rties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first c▇▇▇▇ ▇▇▇▇ ▇▇ ▇alling the customer service desk and indicating such. The Securities Administrator shall have the right to change the way such reports are distributed in order to make such distribution more convenient and/or more accessible to the parties, and the Securities Administrator shall provide timely and adequate notification to all parties regarding any such change. In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-Off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Securities Administrator shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) and (xxi) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Securities Administrator shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished by the Securities Administrator to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Certificateholders pursuant to any other provision requirements of this Lease;the Code as are in force from time to time. (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xxc) On each Distribution Date, the Securities Administrator shall supply an annual electronic tape to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg Financial Markets, Inc. on a monthly basis, and shall supply an electronic tape to Loan Performance and Intex Solutions in a detailed reconciliation of the financial information being provided format acceptable to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Loan Performance and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described Intex Solutions on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementmonthly basis.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (HarborView Mortgage Loan Trust 2004-10)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer pursuant to Sections 3.19 and 4.04, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the Regular Certificates, the Servicer and the Rating Agencies, a statement as to the distributions made on such Distribution Date which shall include the following to Landlordinformation: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: the Overcollateralized Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency Amount (Aif any) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount (if any) for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) Within ten (10) the Pool Balance at the Close of Business Days after at the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Daterelated Due Period; (vii) Within three (3) Business Days of obtaining actual knowledge the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the occurrence of a Tenant Event of Default (or Mortgage Loans as of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances)related Determination Date; (viii) Such additional customary the number and reasonable financial information related aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to any Facility59 days, Tenant(2) 60 to 89 days and (3) 90 or more days, CEOC(B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, ERI (2) 60 to 89 days and their Affiliates which shall be limited (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to balance sheets 59 days, (2) 60 to 89 days and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, 3) 90 or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder)more days, in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord Close of Business on or before twenty-five (25) days after the end last day of each the calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during preceding such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; Distribution Date and (CD) PACE reports, in the form attached hereto as Exhibit IREO Properties; (ix) The compliance certificates, as and when required pursuant to Section 4.3[Reserved]; (x) The Annual Capital Budget the total number and cumulative Stated Principal Balance of all REO Properties as and when required in Section 10.5(d)of the Close of Business of the last day of the preceding Prepayment Period; (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c)the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) Together with the monthly reporting required pursuant to aggregate amount of Realized Losses incurred during the preceding clause (xi), an updated rent roll related Prepayment Period and a summary the cumulative amount of all leasing activity then taking place at each FacilityRealized Losses since the Closing Date and the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the cumulative amount of Subsequent Recoveries received since the Closing Date; (xiii) Operating budget the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relatesDistribution Date; (xiv) Within five (5) Business Days the Certificate Principal Balance of the Floating Rate Certificates and the Class C Certificates, after request (or as soon thereafter as may be reasonably possible), giving effect to the distributions made on such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by LandlordDistribution Date; (xv) The quarterly reporting the Monthly Interest Distributable Amount in respect of Bookings required pursuant each Class of Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to Section 22.7 of this Leasethe Floating Rate Certificates and the Class C Certificates for such Distribution Date; (xvi) The reporting/copies the aggregate amount of Subleases made by Tenant in accordance with Section 22.3any Net Prepayment Interest Shortfalls for such Distribution Date; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Leasethe Credit Enhancement Percentage for such Distribution Date; (xviii) The monthly reporting required pursuant to Section 4.1 hereofthe Net WAC Rate Carryover Amount for each Class of Floating Rate Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenantany Overcollateralization Target Amount, ERI or any direct or indirect subsidiary of ERI Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the extent relevant to the calculation distribution of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereofprincipal on such Distribution Date; (xx) On an annual basis, when the Stepdown Date or a detailed reconciliation Trigger Event has occurred; (xxi) the amount of Available Funds; (xxii) the financial information being provided respective Pass-Through Rates applicable to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) each Class of Floating Rate Certificates and the Net Revenue statements that Tenant is providing Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to Landlord pursuant to clause (iv) above, which reconciliation shows how each Class of Floating Rate Certificates for the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) aboveimmediately succeeding Distribution Date; and (xxixxiii) In connection with any Fee Mortgagee Securitizationpayments, Tenant shallif any, upon received under the written request of Landlord: Cap Contract. The Trustee will make such statement (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurateat its option, approve (and to the extent inaccurate, identify any additional files containing the same with particularityinformation in an alternative format) portions of any Disclosure Document (or any other similar material required available each month to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial StatementCertificateholders

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Chec Loan Trust 2004-1)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer pursuant to Sections 3.19 and 4.04, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (ix) [Reserved]; (x) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period, the cumulative amount of Realized Losses and the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the cumulative amount of Subsequent Recoveries received since the Closing Date; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates, the Class B-1 Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of each Class of Class A Certificates, each Class of Mezzanine Certificates, the Class B-1 Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates, the Class B-1 Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.26; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for the Class A Certificates, the Mezzanine Certificates and the Class B-1 Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to each Class of Class A Certificates, each Class of Mezzanine Certificates, the Class B-1 Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Class A Certificates and each Class of Mezzanine Certificates for the immediately succeeding Distribution Date; and (xxiii) payments, if any, made under the Cap Contract. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at "▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇▇/invr". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (800) 735-7777. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthResidual Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Financial Asset Sec Corp Asset-Backed Certs Series 2004-1)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to the Trust Administrator by the Master Servicer (which in turn shall furnish or cause be based, as applicable, on information provided to be furnished the following Master Servicer by the Servicer), the Trust Administrator shall prepare and make available to Landlordeach Holder of the Regular Certificates, the Credit Risk Manager, the Servicer and the Rating Agencies, a statement as to the distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC:the Holders of each Class of Regular Certificates (other than the Class P Certificates) allocable to interest, separately identified; (iii) the Net Monthly Excess Cashflow, the Overcollateralized Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency Amount and the Overcollateralization Target Amount as of such Distribution Date and the Excess Overcollateralized Amount for the Mortgage Pool for such Distribution Date; (iv) the fees and expenses of the Trust Fund accrued and paid on such Distribution Date and to whom such fees and expenses were paid; (v) the aggregate amount of Advances for the related Due Period (including the general purpose of such Advances); (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans (not including a Liquidated Mortgage Loan as of the end of the Prepayment Period) that were (A) annual financial statements audited by CEOC’s Accountant Delinquent (exclusive of Mortgage Loans in accordance with GAAP covering such Fiscal Year bankruptcy or foreclosure and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with REO Properties) using the OTS Method (1) a report thereon by such Accountant which report shall be unqualified as 30 to scope of audit of CEOC 59 days, (2) 60 to 89 days and its Subsidiaries and shall provide in substance that (A3) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and 90 or more days, (B) that the audit by such Accountant in connection with such Financial Statements has as to which foreclosure proceedings have been made in accordance with GAAP commenced and Delinquent (1) 30 to 59 days, (2) a certificate60 to 89 days and (3) 90 or more days, executed (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties, as well as the aggregate principal balance of Mortgage Loans that were liquidated and the net proceeds resulting therefrom; (ix) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the calendar month preceding the related Distribution Date; (x) the aggregate amount of Principal Prepayments made during the related Prepayment Period, separately indicating Principal Prepayments in full and Principal Prepayments in part; (xi) the aggregate amount of Realized Losses incurred during the related Prepayment Period, which will include the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the aggregate amount of Realized Losses incurred since the Closing Date, which will include the cumulative amount of Subsequent Recoveries received since the Closing Date; (xii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account or the Distribution Account for such Distribution Date; (xiii) the Certificate Principal Balance of each Class of Floating Rate Certificates and the Class C Certificates, before and after giving effect to the distributions made on such Distribution Date; (xiv) the Monthly Interest Distributable Amount in respect of the Fixed Rate Certificates, the Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Fixed Rate Certificates and the Floating Rate Certificates for such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred orServicer pursuant to Section 3.24; (xvi) the Credit Enhancement Percentage for such Distribution Date; (xvii) the Net WAC Rate Carryover Amount for the Fixed Rate Certificates and the Floating Rate Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xviii) whether the Stepdown Date or a Tenant Trigger Event of Default has occurred, specifying the nature Delinquency Percentage for such Distribution Date and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadlineRealized Loss Percentage for such Distribution Date; (Bxix) quarterly unaudited financial statementsthe total cashflows received and the general sources thereof; (xx) the respective Pass-Through Rates applicable to the Fixed Rate Certificates, consisting of a statement of profit the Floating Rate Certificates and loss, a balance sheet, the Class C Certificates for such Distribution Date and statement of cash flows the Pass-Through Rate applicable to the Fixed Rate Certificates and the Floating Rate Certificates for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC immediately succeeding Distribution Date; (Axxi) certifying that no Tenant Event of Default has occurred orpayments, if a Tenant Event of Default has occurredany, specifying made under the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments Cap Contract and the absence amount distributed to each Class of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company Certificates from payments made under the Exchange Act, in no event later than five Cap Contract; (5xxii) Business Days before Landlord REIT’s applicable Form 10-Q filing deadlinethe amount of any Net Swap Payments or Swap Termination Payments; and (Cxxiii) the applicable Record Date, Accrual Period and any other applicable determination dates for calculating distributions for such Distribution Date. The Trust Administrator will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the Master Servicer, the Servicer, the Depositor and unaudited quarterly financial information concerning the Leased Property Rating Agencies via the Trust Administrator’s internet website. The Trust Administrator’s internet website shall initially be located at “▇▇▇.▇▇▇▇▇▇▇.▇▇▇”. Assistance in using the website can be obtained by calling the Trust Administrator’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution options are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and Tenantindicating such. The Trust Administrator shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trust Administrator shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access the Trust Administrator’s internet website, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT the Trust Administrator may require registration and the acceptance of a disclaimer. The Trust Administrator will not be liable for the dissemination of information in accordance with this Agreement. The Trust Administrator shall also be entitled to rely on but shall not be responsible for the content or accuracy of any ongoing filings with or reports information provided by third parties for purposes of preparing the distribution date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) and (ii) above, the SEC under both amounts shall be expressed in a separate section of the Securities Act report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. In addition, on each Distribution Date, based, as applicable, on information provided to the Trust Administrator by the Master Servicer (which in turn shall be based, as applicable, on information provided to the Master Servicer by the Servicer), the Trust Administrator shall prepare and make available information, separated for each Originator, regarding the Exchange Actperformance of the Mortgage Loans, including, but not limited to 10-Q Quarterly Reportsto, 10-K Annual Reports information regarding delinquency, loss and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during prepayment experience of the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) below;Mortgage Loans. (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end Within a reasonable period of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trust Administrator shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trust Administrator shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trust Administrator to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trust Administrator shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trust Administrator deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trust Administrator shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthResidual Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trust Administrator shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trust Administrator pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Soundview Home Loan Trust 2006-2)

Statements. Tenant Not later than 12:00 noon California time on the fourth Business Day following the last day of each calendar month Date, the Master Servicer shall furnish or cause deliver to be furnished the following Trustee a computer tape containing the information set forth on Exhibit M as to Landlordeach Mortgage Loan as of such Record Date and such other information as the Trustee shall reasonably require. Not later than 12:00 noon California time on the Payment Date the Trustee shall deliver to the Master Servicer, to the Certificate Insurer and to the Depositor, by telecopy, a statement (the "Trustee's Report") containing the information set forth below with respect to the succeeding Payment Date: (i) As to the Group Available Funds for the related Payment Date and each SPE Tenant: Group; (aii) within ninety the Pass-Through Rate for the related Payment Date and each Class of Class A Certificates; (90iii) days after the end Certificate Balance for each Class of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheetClass A Certificates, and a statement of cash flows for such SPE Tenant; and the Pool Balance as reported in the prior Trustee's Report pursuant to subclause (bxiii) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31below, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subjector, in the case of quarterly financial statementsthe first Determination Date, to normal year-end audit adjustments the Initial Certificate Balance for each Class of Class A Certificates and the absence of footnotes); (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken Original Pool Balance with respect thereto, all of which shall be provided within ninety (90) days after the end of to each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowGroup; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (Group, the number and aggregate Principal Balances of all Mortgage Loans that were the subject to of Principal Prepayments during the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)Due Period; (v) Prompt Notice with respect to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenanteach Group, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use amount of all or any portion of Curtailments that were received during the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)Due Period; (vi) Within ten with respect to each Group, the principal portion of all Monthly Payments received during the Due Period; (10vii) Business Days after the end of with respect to each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costGroup, the amount of depreciation interest received on the Mortgage Loans; (viii) with respect to each Group, the amount of the Monthly Advances and any improvements thereto, substantially the Compensating Interest payment to be made on the Determination Date; (ix) the delinquency and foreclosure information set forth in the form attached hereto as Exhibit DJ; (x) the Principal Distribution Amount, with the components thereof stated separately, and such additional customary and reasonable financial information the Interest Distribution Amount, stating separately the components of any Mortgage Loan Interest Shortfall, each with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as Payment Date and each Class of the Commencement DateClass A Certificates; (viixi) Within three (3) Business Days of obtaining actual knowledge with respect to each Group, the amount of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall takeInsured Payments, if any, to remedy such Tenant Event be made on the Payment Date; (xii) the amount to be distributed to the Class R Certificateholders for the Payment Date; (xiii) the Certificate Balance of Default the Class A-1 and Class A-2 Certificates and the Pool Balance with respect to each Group after giving effect to the distribution to be made on the Payment Date; (xiv) with respect to each Group, the weighted average remaining term to maturity of the Mortgage Loans and the weighted average Mortgage Interest Rate; (xv) with respect to each Group, the Servicing Fee and the amount to be paid to the Certificate Insurer pursuant to Section 6.06; (xvi) with respect to each Group, the amount of all payments or such facts or circumstancesreimbursements to the Master Servicer; (xvii) the Pool Factor for Class A-1 and Class A-2 after giving effect to the distribution to be made on the Payment Date, computed to six (6) decimal places; (xviii) with respect to each Group, the amount, if any, transferred from the Simple Interest Excess Sub-Account to the Certificate Account pursuant to Section 6.02 and from the Spread Account to the Certificate Account pursuant to Section 6.11; (xix) the percentage of the Excess Spread used to determine the Monthly Excess Spread Amount, the Excess Spread and the Remainder Excess Spread Amount allocable to Reimbursable Amounts and Class R Certificateholders pursuant to Section 6.06(b), the Spread Account Excess and the allocation of the Spread Account Excess to Reimbursable Amounts, Monthly Advances and Class R Certificateholders pursuant to Section 6.11; (xx) the amounts which are reimbursable to the Master Servicer, pursuant to Sections 6.06(b)(xiii); (viiixxi) Such additional customary with respect to each Group, the number of Mortgage Loans outstanding at the beginning and reasonable financial at the end of the related Due Period; (xxii) the amounts on deposit in the Spread Account and the Simple Interest Excess Sub-Account and the monthly withdrawals therefrom as to each Group; and (xxiii) with respect to each Group, the number and Principal Balance of all Mortgage Loans that were Liquidated Mortgage Loans during the Due Period. The Trustee shall forward such report to the Certificateholders, the Certificate Insurer, the Master Servicer and to Moody's and S&P on the Payment Date. The Trustee may fully rely upo▇ ▇▇▇ ▇hall have no liability with respect to information related provided by the Master Servicer. To the extent that there are inconsistencies between the Trustee's Report received prior to any Facilitythe Payment Date and the Trustee's Report received on the Payment Date, Tenantthe Master Servicer, CEOCthe Depositor and the Certificate Insurer may rely upon the latter. In the case of information furnished pursuant to subclauses (iii), ERI (x) and their Affiliates which (xiii) above, the amounts shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), expressed in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation a separate section of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twentyreport as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-five Off Date. (25a) days Within a reasonable period of time after the end of each calendar month year, the following items as they pertain Trustee shall furnish to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthClass A Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary to provide to such Person a statement containing the information set forth in subclauses (vii) and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as and when required are in Section 10.5(d);force from time to time. (xib) The monthly revenue On each Payment Date, the Trustee shall forward to the Class R Certificateholders a copy of the reports forwarded to the Class A Certificateholders in respect of such Payment Date and Capital Expenditure reporting required pursuant a statement setting forth the amounts actually distributed to Section 10.5(c);the Class R Certificateholders on such Payment Date together with such other information as the Trustee deems necessary or appropriate. (xiic) Together with Within a reasonable period of time after the monthly reporting required end of each calendar year, the Trustee shall deliver to each Person who at any time during the calendar year was a Class R Certificateholder, if requested in writing by such Person, such information as is reasonably necessary to provide to such Person a statement containing the information provided pursuant to the preceding clause (xi), an updated rent roll previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a Class R Certificateholder. Such obligation of the Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and a summary furnished to Certificateholders by the Trustee pursuant to any requirements of all leasing activity then taking place at each Facility;the Code as from time to time in force. (xiiid) Operating budget for Upon reasonable advance notice in writing, the Master Servicer will provide to each SPE Tenant for each Fiscal YearClass A Certificateholder which is a savings and loan association, which shall be delivered bank or insurance company access to Landlord no later than fifty-five (55) days following information and documentation regarding the commencement Mortgage Loans sufficient to permit such Class A Certificateholders to comply with applicable regulations of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (Federal Deposit Insurance Corporation or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant other regulatory authorities with respect to each SPE Tenant as may be reasonably requested by Landlord;investment in the Class A Certificates. (xve) The quarterly reporting in respect of Bookings required pursuant Master Servicer and the Trustee shall furnish to Section 22.7 each Certificateholder and to the Certificate Insurer, during the term of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices Agreement, such periodic, special, or reporting required pursuant to Article XXXII hereof other reports or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenantinformation, ERI whether or any direct not provided for herein, as shall be necessary, reasonable, or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information appropriate with respect to the Leased Property Certificateholder or any portion thereofthe Certificate Insurer, Tenant as the case may be, or its Affiliates (excluding (i) any material non-public informationotherwise with respect to the purposes of this Agreement, (ii) any Competitively Sensitive Informationall such reports or information to be provided by and in accordance with such applicable instructions and directions as the Certificateholder or the Certificate Insurer, and (iii) any information subject to bona fide confidentiality restrictionsas the case may be, may reasonably require; provided, however, that the information described on Exhibit M Master Servicer and the Trustee shall be entitled to be reimbursed by such Certificateholder or the Certificate Insurer, as the case may be, for their respective fees and actual expenses associated with providing such reports, if such reports are not generally produced in the ordinary course of their respective businesses or readily obtainable. (f) Reports and computer tapes furnished by the Master Servicer pursuant to this Agreement shall be deemed confidential and of a proprietary nature, and shall not be so excluded even if such information qualifies within clauses (i), (ii) copied or (iii) of this parenthetical), distributed except to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) reviewlaw or to S&P, re-review andMoody's, the Certificate Insurer's reinsurers, parent, regulators, ▇▇▇▇▇▇▇ty providers and auditors, provided that the Certificate Insurer shall attempt in good faith to cause such additional Persons to acknowledge in writing the extent accurateforegoing restrictions, approve (and in connection with the purposes and requirements of this Agreement. No Person entitled to receive copies of such reports or tapes or lists of Certificateholders shall use the extent inaccurate, identify information therein for the same with particularity) portions purpose of any Disclosure Document (soliciting the customers of the Originator or for any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared purpose except as set forth in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementthis Agreement.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Residential Asset Funding Corp)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer, the Trust Administrator shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared the aggregate amount of Servicing Fees and in no event later than sixty (60) days after Master Servicing Fees received by the end of each Fiscal Year, a statement of Net Revenue Servicer and the Master Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trust Administrator deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (ix) [reserved] (x) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account or the Distribution Account for such Distribution Date; (xiv) the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of each Class of Class A Certificates, each Class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.27 or the Master Servicer pursuant to Section 4.19; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for the Class A Certificates and the Mezzanine Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred and when the Servicer Termination Test or the Fitch Servicer Termination Test has been failed; (xxi) the Available Funds for such Distribution Date; (xxii) the respective Pass-Through Rates applicable to each Class of Class A Certificates, each Class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Class A Certificates and each Class of Mezzanine Certificates for the immediately succeeding Distribution Date; and (xxiii) payments, if any, made under the Cap Contract. The Trust Administrator will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the Rating Agencies via the Trust Administrator's internet website. The Trust Administrator's internet website shall initially be located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇". Assistance in using the website can be obtained by calling the Trust Administrator's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trust Administrator shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trust Administrator shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trust Administrator's internet website, the Trust Administrator may require registration and the acceptance of a disclaimer. 105 The Trust Administrator will not be liable for the dissemination of information in accordance with this Agreement. The Trust Administrator shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trust Administrator shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trust Administrator shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trust Administrator to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trust Administrator shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trust Administrator deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trust Administrator shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthResidual Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trust Administrator shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trust Administrator pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Financial Asset Sec Corp Fremont Home Loan Trust 2003 A)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer pursuant to Sections 3.19 and 4.04, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (ix) [Reserved]; (x) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period, the cumulative amount of Realized Losses and the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the cumulative amount of Subsequent Recoveries received since the Closing Date; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates, the Class B Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of each Class of Class A Certificates, each Class of Mezzanine Certificates, the Class B Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates, the Class B Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.26; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for the Class A Certificates, the Mezzanine Certificates and the Class B Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to each Class of Class A Certificates, each Class of Mezzanine Certificates, the Class B Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Class A Certificates and each Class of Mezzanine Certificates for the immediately succeeding Distribution Date; and (xxiii) payments, if any, made under the Cap Contract. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at "▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇▇/invr". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (800) 735-7777. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthResidual Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Finance America Mortgage Loan Trust 2004-2)

Statements. Tenant (a) On each Distribution Date, based on the Mortgage Loan information contained in the Master Servicer’s Certificate, the Securities Administrator shall furnish or cause prepare a statement (the “Distribution Date Statement”) as to be furnished the following to Landlorddistributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Certificates allocable to principal separately identifying the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, distribution made on such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, Distribution Date to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC:the Holders of each Class of Certificates allocable to interest and the Class CE Distributable Amount, separately identified; (Aiii) annual financial statements audited the Overcollateralization Amount and the Overcollateralization Deficiency as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year the Servicer during the related Collection Period and containing statement the amount of profit Compensating Interest paid by the Servicer; (v) the amount of Monthly Advances for the related Collection Period, unreimbursed Monthly Advances and lossServicing Advances and Advances that are Nonrecoverable Advances; (vi) the Pool Balance, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results close of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after business at the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadlinerelated Collection Period; (Bvii) quarterly unaudited financial statementsthe number, consisting weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) the number and aggregate Stated Principal Balance of Mortgage Loans (a) 30 to 59 days past due on a statement of profit and losscontractual basis, (b) 60 to 89 days past due on a balance sheetcontractual basis, and statement of cash flows for CEOC(c) 90 or more days past due on a contractual basis, together with a certificate, executed by the chief financial officer or treasurer of CEOC (Ad) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed as to be taken with respect thereto, which foreclosure proceedings have been commenced and (Be) certifying in bankruptcy as of the close of business on the last day of the related Collection Period; (ix) the aggregate number of Mortgage Loans that such Financial Statements fairly present, in all material respects, became REO Properties during the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments related Collection Period and the absence aggregate Stated Principal Balance of footnotessuch Mortgage Loans (calculated as of the date each such Mortgage Loan became an REO Property), all of which shall be provided ; (x) within sixty the total number and aggregate Stated Principal Balance of all REO Properties as of the close of business of the last day of the related Collection Period; (60xi) days after the end aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the Mortgage Loan identifying number of each Mortgage Loan with a Prepayment Charge that was the subject of a Principal Prepayment in full during the first three related Prepayment Period, the Prepayment Charge listed on each related Mortgage Note and the Prepayment Charge collected or the Servicer Prepayment Charge Payment Amount paid by the Servicer with respect to each such Mortgage Loan; (3xiii) Fiscal Quarters the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiv) the Certificate Principal Balance or Maximum Certificate Principal Balance of each Fiscal Year Class of Certificates, after giving effect to the distributions, and allocations of Applied Realized Loss Amounts made on such Distribution Date, separately identifying any reduction thereof due to allocations of Applied Realized Loss Amounts; (commencing xv) the Accrued Certificate Interest in respect of each Class of Certificates for such Distribution Date and any related Cap Carryover Amounts (assuming in the case of a Class of Exchangeable REMIC Certificates no exchanges have occurred and in the case of a Class of Exchangeable Certificates that all exchanges have occurred), and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date; (xvii) the Cap Carryover Amounts distributed on such Distribution Date; (xviii) the Available Funds; the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xix) the aggregate amount of Net Liquidation Proceeds for the related Collection Period; (xx) the aggregate Stated Principal Balance of Mortgage Loans purchased by or substituted for by a Seller or American General Finance Corporation during the related Prepayment Period; (xxi) the number and aggregate Stated Principal Balance of Mortgage Loans that were the subject of a Principal Prepayment in full during the related Prepayment Period; (xxii) the amount of Subsequent Recoveries received during the related Prepayment Period; (xxiii) with respect to Mortgage Loans that were subject to a Servicer Modification during the Fiscal Quarter ending March 31related Collection Period: (a) the Mortgage Loan identifying number; (b) the date of modification; (c) the Stated Principal Balance prior to and after modification; (d) the Monthly Payment prior to and after modification; (e) the forborne amount (if any); (f) the Mortgage Interest Rate prior to and after modification; (g) the maturity date prior to and after modification; and (h) the number of days Delinquent prior to modification; (xxiv) whether any exchanges of Exchangeable or Exchangeable REMIC Certificates have taken place since the preceding Distribution Date and, 2018) but if Guarantor is not applicable, the Class designations, Certificate Principal Balances, Maximum Certificate Principal Balances and any interest and principal paid, including any shortfalls allocated, of any Classes of Exchangeable REMIC Certificates or Exchangeable Certificates that were received by the Certificateholder as a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadlineresult of such exchange; and (Cxxv) such additional if there has been a revision to the Delegated Authority Guidelines, a copy thereof. The Securities Administrator may fully rely upon and shall have no liability with respect to information and unaudited quarterly financial information concerning with respect to the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) Mortgage Loans provided by the SEC under both Master Servicer. In the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause information furnished pursuant to subclauses (i), (ii) and (iii)xv) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant the amounts shall be expressed in accordance with GAAP covering such Fiscal Year and containing statement a separate section of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. The Securities Administrator will make the Distribution Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to beneficial owners of Certificates that provide appropriate certification in the form furnished by the Securities Administrator (which may be submitted electronically via the Securities Administrator’s internet website) and other parties to this Agreement via the Securities Administrator’s internet website. The Securities Administrator’s internet website shall initially be located at “▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇.” Assistance in using the website can be obtained by calling the Securities Administrator’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the website are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Securities Administrator shall have the right to change the way the monthly statements to Certificateholders are distributed in order to make such Accountant which shall be unqualified as distribution more convenient and/or more accessible to scope of audit of ERI the above parties and its Subsidiaries and the Securities Administrator shall provide in substance that (a) timely and adequate notification to all above parties regarding any such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and changes. (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end Within a reasonable period of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount of depreciation and Securities Administrator shall furnish to each Person who at any improvements theretotime during the calendar year was a Certificateholder, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of necessary to provide to such Person a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and statement containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses set forth in subclauses (i), (ii) or (iii) of this parenthetical), (xiv) and (xv) above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Securities Administrator shall be deemed to have been satisfied to the extent reasonably requested that substantially comparable information shall be prepared and furnished by such Fee Mortgagee the Securities Administrator to Certificateholders pursuant to any requirements of the Code as are in order force from time to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; andtime. (Bc) reviewOn each Distribution Date, re-review and, the Securities Administrator shall forward to the Class R Certificateholder upon request a copy of the reports forwarded to the Certificateholders of Certificates other than the Class R Certificate in respect of such Distribution Date with such other information as the Securities Administrator deems necessary or appropriate. Such obligation of the Securities Administrator shall be deemed to have been satisfied to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any substantially comparable information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and furnished to the extent such compliance with federal securities laws, including Regulation S-X (and for Class R Certificateholder by the Servicer pursuant to any prior periods required thereunder), is required requirements of the Code as from time to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementtime in force.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (American General Finance Corp)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (ix) [reserved]; (x) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of each Class of Class A Certificates, each Class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.26; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for each Class of Class A Certificates and each Class of Mezzanine Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to each Class of Class A Certificates, each Class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Pass- Through Rate applicable to each Class of Class A Certificates and each Class of Mezzanine Certificates for the immediately succeeding Distribution Date; (xxiii) (A) the amount of payments received related to claims under the PMI Policy during the related Prepayment Period (and the number of Mortgage Loans to which such payments related) and (B) the cumulative amount of payments received related to claims under the PMI Policy since the Closing Date (and the number of Mortgage Loans to which such payments related); (A) the dollar amount of claims made under the PMI Policy that were denied during the Prepayment Period (and the number of Mortgage Loans to which such denials related) and (B) the dollar amount of the cumulative claims made under the PMI Policy that were denied since the Closing Date (and the number of Mortgage Loans to which such denials related); (xxv) the amount on deposit in the Dividend Account immediately prior to the related Servicer Remittance Date, the amount deposited into the Dividend Account on the related Servicer Remittance Date (separately identifying the amount received from Mortgagors and the amount advanced) and the amount withdrawn from the Dividend Account on the related Servicer Remittance Date (separately identifying the amount refunded to Mortgagors and the amount distributed to the holder of the Dividend Account Certificate on such Distribution Date); and (xxvi) payments, if any, made under the Cap Contract. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthResidual Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Financial Asset Sec Corp First Frank Mort Ln Tr 2002-Ff2)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Master Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Master Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31, 2017Class S Certificates), but if Guarantor is not a reporting company under separately identified, allocable to principal and the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Master Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Master Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date and the number and aggregate principal balance of all Subsequent Mortgage Loans added during the preceding Prepayment Period; (viii) the number and aggregate unpaid principal balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 95 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (ix) with respect to any Mortgage Loan that became an REO Property during the preceding Prepayment Period, the loan number of such Mortgage Loan, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates and the Class C Certificates and the Notional Amount of the Class S Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of the Class A Certificates, the Mezzanine Certificates, the Class C Certificates and the Class S Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Master Servicer pursuant to Section 3.26; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for the Class A Certificates and the Mezzanine Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Pass- Through Rate applicable to the Class A Certificates and the Mezzanine Certificates for the immediately succeeding Distribution Date; (xxiii) the amount on deposit in the Pre-Funding Account and the Reserve Fund; and (xxiv) for the distribution occurring on the Distribution Date immediately following the end of the related Funding Period, the balance on deposit in the Pre-Funding Account that has not been used to purchase Subsequent Mortgage Loans and that is being distributed to the Class A Certificates as a mandatory prepayment of principal, if any, on such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the Rating Agencies via the Trustee's internet website and its fax-on-demand service. The Trustee's fax-on- demand service may be accessed by calling (▇▇▇) ▇▇▇-▇▇▇▇. The Trustee's internet website shall initially be located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇". Assistance in using the website or the fax-on-demand service can be obtained by calling the Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution options are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall forward to the Class R Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthClass R Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Class R Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Option One Mort Accept Corp Asset Backed Cert Ser 2000-2)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicers, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Servicers and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of servicing compensation received by each Fiscal Year, a statement of Net Revenue Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the aggregate Stated Principal Balance of the Mortgage Loans at the close of business at the end of the last Business Day of the calendar month preceding the related Distribution Date; (vii) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans (a) delinquent 30-59 days, (b) delinquent 60-89 days, (c) delinquent 90 or more days in each case, as of the last day of the preceding calendar month, (d) as to which foreclosure proceedings have been commenced and (e) with respect to which the related Mortgagor has filed for protection under applicable bankruptcy laws, with respect to whom bankruptcy proceedings are pending or with respect to whom bankruptcy protection is in force; (ix) with respect to any Mortgage Loan that became an REO Property during the preceding Prepayment Period, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xiii) the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date, and the Notional Amount of the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xiv) the Monthly Interest Distributable Amount in respect of the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates and the Mezzanine Certificates for such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicers pursuant to Section 3.23, and the aggregate amount of any Relief Act Interest Shortfalls for such Distribution Date; (xvi) the Credit Enhancement Percentage for such Distribution Date; (xvii) the Net WAC Rate Carryover Amount for the Class A Certificates and the Mezzanine Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xviii) when the Stepdown Date or a Trigger Event has occurred; (xix) the Available Funds; and (xx) the respective Pass-Through Rates applicable to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to the Class A Certificates and the Mezzanine Certificates for the immediately succeeding Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the Servicers and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at "http:\\www-apps.gis.deutsche- b▇▇▇.▇▇▇/▇▇▇▇. Assistance in using the website can be obtained by calling the Trustee's customer service desk at 1-800- 735-7777. Parties that are unable to use the above distribution options are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Closing Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall forward to the Class R Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthClass R Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Class R Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by TenantCode as from time to time in force. On each Distribution Date the Trustee shall provide Bloomberg Financial Markets, ERI or any direct or indirect subsidiary L.P. ("Bloomberg") CUSIP level factors for each Class of ERI Certificates as of such Distribution Date, using a format and media mutually acceptable to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Trustee and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial StatementBloomberg.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Finan as Sec Cp SDVW Hm Eq Ln Tr 2001-2 as Bk Cer Ser 2001-2)

Statements. Tenant shall furnish or cause to be furnished the following to Landlord: (i) As to each SPE Tenant: (a) within ninety (90) days after On each Distribution Date, the end of Securities Administrator shall make available to each Fiscal Year (commencing with Certificateholder, the Fiscal Year ending December 31Seller, 2017)the Master Servicer, but if Guarantor is not a reporting company under the Exchange ActTrustee and each Rating Agency, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit based, as applicable, on loan-level information obtained from the Master Servicer and lossthe Servicers, a balance sheet(the “Distribution Date Statement”) as to the distributions to be made or made, and a statement of cash flows for as applicable, on such SPE Tenant; and (b) within sixty (60) days after Distribution Date. The Distribution Date Statement shall include the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flowsfollowing, in each case, with respect to such financial statements, Distribution Date: (i) the amount of the distribution made on such Distribution Date to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer Holders of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results each Class of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, Certificates allocable to normal year-end audit adjustments and the absence of footnotes)principal; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting Class of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed Certificates allocable to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowinterest; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year the Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow Subordinate Prepayment Percentage for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowfollowing Distribution Date; (iv) As soon as it is prepared the aggregate amount of Servicing Fees, Credit Risk Management Fees and in no event later than sixty (60) days after Master Servicing Fees for the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)related Due Period; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any Advances for the related Due Period and the amount of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)unreimbursed Advances; (vi) weighted average remaining term to maturity, weighted average life and weighted average Loan Rate of the related Mortgage Loans as of the related Due Date; (vii) the Net WAC and applicable Net WAC Cap at the Close of Business at the end of the related Due Period; (viii) the aggregate Principal Balance of the Six-Month LIBOR Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (ix) the amount of fees, expenses or indemnification amounts paid by the Trust Fund with an identification of the general purpose of such amounts and the party receiving such amounts; (x) the aggregate Prepayment Premium Amounts for the related Prepayment Period; (xi) the number and aggregate unpaid principal balance of Mortgage Loans (a) 30 to 59 days Delinquent, (b) 60 to 89 days Delinquent, (c) 90 or more days Delinquent, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy, in each case as of the close of business on the last day of the preceding calendar month, in each case, using the MBA method; (xii) the book value (if available) of any REO Property as of the Close of Business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Due Period; (xiii) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xiv) the aggregate amount of Realized Losses incurred during the related Due Period and the cumulative amount of Realized Losses and the amount of Realized Losses, if any, allocated to each Class of Certificates; (xv) the Class Principal Balance or Class Notional Balance, as applicable, of each Class of Certificates after giving effect to any distributions made thereon, on such Distribution Date after giving effect to any distributions made thereon, on such Distribution Date; (xvi) the Current Interest in respect of each Class of Certificates, for such Distribution Date and the portion thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xvii) the aggregate amount of any Net Interest Shortfalls for such Distribution Date after giving effect to any distributions made thereon, on such Distribution Date; (xviii) the Available Funds; (xix) the Pass-Through Rate for each Class of Certificates for such Distribution Date; (xx) the aggregate Principal Balance of Mortgage Loans purchased hereunder by the Seller during the related Due Period, and indicating the relevant section of the Servicing Agreement, or the Section of this Agreement, as applicable, requiring or allowing the purchase of each such Mortgage Loan; (xxi) current and cumulative Recoveries for such Distribution Date; (xxii) the amount of any Basis Risk Shortfall, if any, for each Class after giving effect to any distributions made thereon, on such Distribution Date (xxiii) the Final Maturity Reserve Amount deposited in the Final Maturity Reserve Account, and, on the Final Maturity Reserve Termination Date, the amount distributed from the Final Maturity Reserve Account to each Class of Certificates; (xxiv) the payments, if any, made from the Yield Maintenance Account and the amount distributed to the LIBOR Certificates from such payments; and (xxv) the amount of any Class P Distributable Amount for such Distribution Date. The Securities Administrator shall make the Distribution Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the other parties to this Agreement via the Securities Administrator’s internet website. The Securities Administrator’s internet website shall initially be located at “▇▇▇.▇▇▇▇▇▇▇.▇▇▇.” Assistance in using the website can be obtained by calling the Securities Administrator’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Securities Administrator shall have the right to change the way such reports are distributed in order to make such distribution more convenient and/or more accessible to the parties, and the Securities Administrator shall provide timely and adequate notification to all parties regarding any such change. In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-Off Date. In addition to the information listed above, such Distribution Date Statement or the report on Form 10-D for such Distribution Date shall also include any other information required by Item 1121 (§ 229.1121) of Regulation AB. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Securities Administrator shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder and such other customary information which a Certificateholder reasonably requests to prepare its tax returns. Such obligation of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Securities Administrator shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished by the Securities Administrator to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Certificateholders pursuant to any other provision requirements of this Lease;the Code as are in force from time to time. (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xxc) On each Distribution Date, the Securities Administrator shall supply an annual electronic tape to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg Financial Markets, Inc. on a monthly basis, and shall supply an electronic tape to Loan Performance and Intex Solutions in a detailed reconciliation of the financial information being provided format acceptable to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Loan Performance and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described Intex Solutions on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementmonthly basis.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (HarborView 2006-13)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Master Servicer, the Trustee shall furnish or cause prepare and make available by electronic medium (as set forth in the penultimate paragraph of this Section 4.03(a)) to be furnished each Holder of the following Regular Certificates, the Trustee, the Master Servicer, the NIMS Insurer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Master Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotesClass P Certificates), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31allocable to interest, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool, for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Master Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)reserved; (vi) the aggregate amount of Advances for the related Due Period; (vii) the aggregate Stated Principal Balance of the Mortgage Loans at the Close of Business at the end of the related Due Period; (viii) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (ix) the number and aggregate unpaid principal balance of Mortgage Loans (a) delinquent 30‑59 days, (b) delinquent 60‑89 days, (c) delinquent 90 or more days in each case, as of the last day of the preceding calendar month provided, however that any aggregate unpaid principal balance of Mortgage Loans shall be reported as of the last day of the related Due Period, (d) as to which foreclosure proceedings have been commenced and (e) with respect to which the related Mortgagor has filed for protection under applicable bankruptcy laws, with respect to whom bankruptcy proceedings are pending or with respect to whom bankruptcy protection is in force; (x) with respect to any Mortgage Loan that became an REO Property during the preceding Prepayment Period, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (xi) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xii) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xiii) by Loan Group and in the aggregate, the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xiv) the aggregate amount of Extraordinary Trust Fund expenses withdrawn from the Collection Account or the Distribution Account for such Distribution Date; (xv) the Certificate Principal Balance of the Class A Certificates, the Class M Certificates, the Class B Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date, and the Notional Amount of the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xvi) the Monthly Interest Distributable Amount in respect of the Class A Certificates, the Class M Certificates, the Class B Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Class M Certificates and the Class B Certificates for such Distribution Date; (xvii) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Master Servicer pursuant to Section 3.24, and the aggregate amount of any Relief Act Interest Shortfalls for such Distribution Date; (xviii) the Credit Enhancement Percentage for such Distribution Date; (xix) the related Net WAC Rate Carryover Amount for the Class A Certificates, the Class M Certificates and the Class B Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xx) the Trustee Fee on such Distribution Date; (xxi) whether a Stepdown Date or a Trigger Event has occurred; (xxii) the Available Funds; (xxiii) the respective Pass‑Through Rates applicable to the Class A Certificates, the Class M Certificates, the Class B Certificates and the Class C Certificates for such Distribution Date and the Pass‑Through Rate applicable to the Class A Certificates, the Class M Certificates and the Class B Certificates for the immediately succeeding Distribution Date; (xxiv) reserved; (xxv) any other information that is required by the Code and regulations thereunder to be made available to Certificateholders; (xxvi) the amount on deposit in the Reserve Fund; (A) the dollar amount of payments received related to claims under the PMI Policy during the related Prepayment Period (and the number of Mortgage Loans to which such payments related) and (B) the aggregate dollar amount of payments received related to claims under the PMI Policy since the Cut-off Date (and the number of Mortgage Loans to which such payments related); (xxviii) (A) the dollar amount of claims made under the PMI Policy that were denied during the related Prepayment Period (and the number of Mortgage Loans to which such denials related) and (B) the aggregate dollar amount of claims made under the PMI Policy that were denied since the Cut-off Date (and the number of Mortgage Loans to which such denials related); (xxix) for such Distribution Date, the amount of any payment made by the Cap Provider under the Cap Agreement; and (xxx) the amount of Subsequent Recoveries and Gross Subsequent Recoveries for the related Prepayment Period and the cumulative amount of Subsequent Recoveries and Gross Subsequent Recoveries in the aggregate and for each of Loan Group I and Loan Group II. The Trustee shall make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the Master Servicer, the NIMS Insurer and the Rating Agencies via the Trustee’s internet website. The Trustee’s internet website shall initially be located at ▇▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/invr. Assistance in using the website can be obtained by calling the Trustee’s customer service desk at 1‑800‑735‑7777. Parties that are unable to use the above distribution options are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Closing Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall forward to the Holders of the occurrence of Residual Certificates and the NIMS Insurer a Tenant Event of Default (or copy of the occurrence of any facts or circumstances which, with reports forwarded to the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthHolder of a Residual Certificate, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Holder of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which a Residual Certificate. Such obligation of the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision requirements of this Lease;the Code as from time to time in force. (xviiie) The monthly reporting required pursuant to Section 4.1 hereof; On each Distribution Date the Trustee shall provide Bloomberg Financial Markets, L.P. (xix“Bloomberg”) Semi-annual property-CUSIP level betting & gaming revenue information received pursuant to Section 10.2 factors for each Class of the MTSA by TenantCertificates as of such Distribution Date, ERI or any direct or indirect subsidiary of ERI using a format and media mutually acceptable to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Trustee and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial StatementBloomberg.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Long Beach Mortgage Loan Trust 2004-6, Asset-Backed Certs., Series 2004-6)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause make available on its website at ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇ for access by each Holder of the Regular Certificates, a statement as to be furnished the following to Landlorddistributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to the Holders of each SPE Tenant: Class of Certificates allocable to principal or reduction of Notional Amount, separately identified; (ii) the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to interest or Class X Distributable Amount, separately identified; (iii) the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Overcollateralization Target Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) [reserved]; (v) the aggregate amount of Advances for the related Collection Period; (vi) the Pool Balance at the close of business at the end of the related Collection Period; (vii) the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) the number and aggregate unpaid Principal Balance of Mortgage Loans (a) within ninety 30 to 59 days past due on a contractual basis, (90b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) with respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Mortgage Loan, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Prepayment Charges collected (including amounts deposited in connection with the full or partial waiver of such Prepayment Charges pursuant to Section 3.01) during the related Collection Period and the amounts thereof allocable to the Class N Certificates and the Class X Certificates; (xiii) the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiv) the Certificate Principal Balance or Notional Amount, as applicable, of each Class of Certificates, after giving effect to the distributions, and allocations of Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xv) the Accrued Certificate Interest in respect of each Class of Class A Certificates, Mezzanine Certificates and Class B Certificates for such Distribution Date, and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date and the amount of any Net WAC Rate Carryover Amounts; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23; (xvii) the amount of the Trustee Fee paid; (xviii) the Net WAC Rate Carryover Amounts distributed on such Distribution Date and the amounts remaining after giving effect to distributions thereof on such Distribution Date; (xix) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xx) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xxi) the Available Funds; (xxii) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxiii) the Liquidation Report for such Distribution Date; (xxiv) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer or Seller during the related Collection Period and indicating the Section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; and (xxv) the aggregate Principal Balance of the Mortgage Loans repurchased by the Servicer (or an affiliate) during the related Collection Period in connection with Section 3.16. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Mortgage Loans provided by the Servicer. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within a reasonable period of time after the end of each Fiscal Year (commencing with calendar year, the Fiscal Year ending December 31Trustee shall furnish to each Person who at any time during the calendar year was a Certificateholder of a Regular Certificate, 2017)if requested in writing by such Person, but if Guarantor such information as is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering reasonably necessary to provide to such Fiscal Year and containing Person a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after containing the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, information set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes); (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause subclauses (i), (ii), (xv) and (iii)xx) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering aggregated for such Fiscal Year and containing statement calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which Trustee shall be unqualified as deemed to scope of audit of ERI and its Subsidiaries and shall provide in substance have been satisfied to the extent that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which substantially comparable information shall be limited prepared and furnished by the Trustee to balance sheetsCertificateholders pursuant to any requirements of the Code as are in force from time to time. (c) On each Distribution Date, income statements, and statements the Trustee shall forward to the Residual Certificateholders a copy of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or the reports forwarded to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including Regular Certificateholders in respect of Landlord REIT’s qualification such Distribution Date with such other information as a REIT) and (iii) any other federal, state the Trustee deems necessary or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect appropriate. Such obligation of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished to Landlord no later than fifty-five (55) days following Residual Certificateholders by the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc)

Statements. Tenant (a) On each Distribution Date, based on the Mortgage Loan information contained in the Master Servicer's Certificate, the Securities Administrator shall furnish or cause to be furnished prepare and post on its website at www.ctslink.com, a statement (the following to Landlord"Distribution Date Statement") a▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇butions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to the Holders of each SPE Tenant: Class of Certificates allocable to principal, separately identified and the amount of the distribution made on such Distribution Date to the Holders of the Class P Certificates allocable to Prepayment Charges, Originator Prepayment Charge Payment Amounts and Servicer Prepayment Charge Payment Amounts; (ii) the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to interest or Class CE Distributable Amount, separately identified; (iii) the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Targeted Overcollateralization Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by each Servicer during the prior calendar month and the amount of Compensating Interest paid by each Servicer; (v) the aggregate amount of Advances for the related Collection Period, cumulative unreimbursed Advances and Servicing Advances and cumulative Nonrecoverable Advances; (vi) the Pool Balance, at the close of business at the end of the related Collection Period; (vii) the number, weighted average remaining term to maturity and the weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date and the number and aggregate Principal Balance of all Additional Mortgage Loans added since the Closing Date or preceding Distribution Date, as applicable; (viii) the number and aggregate unpaid principal balance of Mortgage Loans (a) within ninety (90) 30 to 59 days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31past due on a contractual basis, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty 60 to 89 days past due on a contractual basis, (60c) 90 or more days after the end of each past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of the first three close of business on the last day of the calendar month preceding such Distribution Date; (3ix) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statementsany Mortgage Loan that became an REO Property during the preceding calendar month, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer loan number of such SPE Tenant, certifying that such financial statements fairly present, in all material respectsMortgage Loan, the financial position and results unpaid Principal Balance of operations the REO Property as of the close of business on the last Business Day of such SPE Tenant calendar month and its Subsidiaries the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) the book value of any REO Property as of the close of business on a consolidated basis in accordance with GAAP (subjectthe last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period or, in the case of quarterly financial statementsJPM Chase Bank, to normal year-end audit adjustments and as of the absence close of footnotes)business on the last Business Day of the calendar month preceding the Distribution Date; (iixi) As to CEOC:separately stated for each Loan Group, the aggregate amount of Principal Prepayments made during the related Prepayment Period; (Axii) annual financial statements audited by CEOC’s Accountant separately stated for each Loan Group, the aggregate amount of Realized Losses incurred during the related Collection Period or, in accordance with GAAP covering such Fiscal Year and containing statement the case of profit and lossJPM Chase Bank, a balance sheetas of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and statement the cumulative amount of cash flows Realized Losses; (xiii) the Certificate Principal Balance of each Class of Certificates, after giving effect to the distributions, and allocations of Applied Realized Loss Amounts, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Applied Realized Loss Amounts; (xiv) the Accrued Certificate Interest in respect of each Class of Certificates for CEOCsuch Distribution Date and any related Cap Carryover Amounts, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for respective portions thereof, if any, remaining unpaid following the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been distributions made in accordance respect of such Certificates on such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by a Servicer pursuant to Section 3.25; (xvi) the Cap Carryover Amounts distributed on such Distribution Date, the amounts remaining after giving effect to distributions thereof on such Distribution Date and the amount of all Cap Carryover Amounts covered by withdrawals from the Swap Account or the Cap Carryover Reserve Account on such Distribution Date; (xvii) the Pre-Funding Release for each Loan Group for such Distribution Date; (xviii) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xix) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xx) the Available Funds; (xxi) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxii) the information contained in the Liquidation Report for such Distribution Date; (xxiii) the aggregate Principal Balance of Mortgage Loans purchased or substituted by a Servicer, an Originator, the Seller or a Purchasing Party during the related Prepayment Period; (xxiv) the amount of the Credit Risk Manager Fee paid; (xxv) the Mortgage Loan identifying number of each Mortgage Loan with GAAP a Prepayment Charge that was the subject of a Principal Prepayment in full during the related Prepayment Period, the Prepayment Charge listed on each related Mortgage Note and (2) a certificatethe Prepayment Charge collected, executed the Servicer Prepayment Charge Payment Amount paid by the chief financial officer related Servicer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken Originator Prepayment Charge Payment Amount paid by the related Originator with respect theretoto each such Mortgage Loan; (xxvi) the amount of Subsequent Recoveries received during the related Prepayment Period; (xxvii) the amount and recipient of any Net Swap Payments and Swap Termination Payments; (xxviii) the date of such Distribution Date and the Determination Date for such Distribution Date; 155 (xxix) any expenses or indemnification amounts paid by the Trust Fund, all of which shall be provided within ninety (90) days after the end specific purpose of each Fiscal Year payment and the parties to whom these payments are made; (commencing with xxx) for each Class, the Fiscal Year ending December 31applicable Record Date, 2017LIBOR Determination Date and Interest Accrual Period; (xxxi) but if Guarantor unless such information is not a reporting company under the Exchange Act, otherwise set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statementsD relating to such Distribution Date, consisting any material breaches of a statement representations and warranties relating to the Mortgage Loans or material breaches of profit transaction covenants or representations and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadlinewarranties; and (Cxxxii) such additional information and unaudited quarterly financial information concerning for each Class, the Leased Property and Tenantapplicable Certificate Interest Rate, which information shall be limited to balance sheets, income statementsif applicable, and statements the applicable Pass-Through Rate, if different. The Securities Administrator may fully rely upon and shall have no liability with respect to information with respect to the Mortgage Loans provided by the Master Servicer. In determining whether a breach of cash flowa representation or warranty relating to the Mortgage Loans is material or whether a breach of a transaction covenant or representation or warranty is material for purposes of subclause (xxxi) above, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act Administrator may consult with the Depositor and rely on the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during Depositor's determination of materiality. In the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause information furnished pursuant to subclauses (i), (ii) and (iii)xiii) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant the amounts shall be expressed in accordance a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. The Securities Administrator will also make available copies of the periodic reports the Securities Administrator prepares and files with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERIthe Commission, including distribution reports on Form 10-D, annual reports on Form 10-K, current reports on Form 8-K and amendments to these reports available through www.ctslink.com promptly (but no later than one Business Day) after ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Administrator has filed such reports with the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and Commission. (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end Within a reasonable period of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Securities Administrator shall furnish to the NIMS Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of necessary to provide to such Person a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and statement containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses set forth in subclauses (i), (ii) or (iii) of this parenthetical), (xiv) and (xvi) above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Securities Administrator shall be deemed to have been satisfied to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any substantially comparable information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared and furnished by the Securities Administrator to Certificateholders pursuant to any requirements of the Code as are in compliance force from time to time. (c) On each Distribution Date, the Securities Administrator shall forward to each Residual Certificateholder a copy of the reports forwarded to the Regular Certificateholders in respect of such Distribution Date with applicable federal securities lawssuch other information as the Trustee deems necessary or appropriate. Such obligation of the Securities Administrator shall be deemed to have been satisfied to the 156 extent that substantially comparable information shall be prepared and furnished to each Residual Certificateholder by the Securities Administrator pursuant to any requirements of the Code as from time to time in force. (d) For all purposes of this Agreement including, including Regulation S-X but not limited to, providing the information set forth in clause (and for any prior periods required thereunderviii) of Section 4.06(a), if with respect to any Mortgage Loan, delinquencies shall be determined and reported based on the so-called "OTS" methodology for determining delinquencies on mortgage loans similar to the extent Mortgage Loans. By way of example, a Mortgage Loan would be one payment delinquent with respect to a Monthly Payment due on a Due Date if such compliance Monthly Payment is not made by the close of business on the Mortgage Loan's next succeeding Due Date, and a Mortgage Loan would be two payments delinquent with federal securities lawsrespect to such Monthly Payment if such Monthly Payment were not made by the close of business on the Mortgage Loan's second succeeding Due Date. Each Servicer hereby represents and warrants to the Depositor and the Master Servicer that this delinquency recognition policy is its current policy and is not less restrictive than any delinquency recognition policy established by the primary safety and soundness regulator, including Regulation S-X (and for any prior periods required thereunder)if any, is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file of such Financial StatementServicer.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (ABFC 2006-He1 Trust)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer pursuant to Section 4.04(a), the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the Regular Certificates, the Servicer and the Rating Agencies, a statement as to the distributions made on such Distribution Date which shall include the following to Landlordinformation: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: the Overcollateralized Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency Amount (Aif any) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount (if any) for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) Within ten (10) the Pool Balance at the Close of Business Days after at the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Daterelated Due Period; (vii) Within three (3) Business Days of obtaining actual knowledge the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the occurrence of a Tenant Event of Default (or Mortgage Loans as of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) related Determination Date and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event number and aggregate Stated Principal Balance of Default (or such facts or circumstances)all Subsequent Group II Mortgage Loans added during the related Prepayment Period; (viii) Such additional customary the number and reasonable financial information related aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and 105 REO Properties) (1) 30 to any Facility59 days, Tenant(2) 60 to 89 days and (3) 90 or more days, CEOC(B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, ERI (2) 60 to 89 days and their Affiliates which shall be limited (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to balance sheets 59 days, (2) 60 to 89 days and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, 3) 90 or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder)more days, in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord Close of Business on or before twenty-five (25) days after the end last day of each the calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during preceding such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; Distribution Date and (CD) PACE reports, in the form attached hereto as Exhibit IREO Properties; (ix) The compliance certificates, as and when required pursuant to Section 4.3[Reserved]; (x) The Annual Capital Budget the total number and cumulative Stated Principal Balance of all REO Properties as and when required in Section 10.5(d)of the Close of Business of the last day of the preceding Prepayment Period; (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c)the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) Together with the monthly reporting required pursuant to aggregate amount of Realized Losses incurred during the preceding clause (xi), an updated rent roll related Prepayment Period and a summary the cumulative amount of all leasing activity then taking place at each FacilityRealized Losses; (xiii) Operating budget the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relatesDistribution Date; (xiv) Within five (5) Business Days the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates, the Class B Certificates and the Class C Certificates, after request (or as soon thereafter as may be reasonably possible), giving effect to the distributions made on such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by LandlordDistribution Date; (xv) The quarterly reporting the Monthly Interest Distributable Amount in respect of Bookings required pursuant each Class of Class A Certificates, each Class of Mezzanine Certificates, the Class B Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to Section 22.7 of this Leasethe Class A Certificates, the Mezzanine Certificates, the Class B Certificates and the Class C Certificates for such Distribution Date; (xvi) The reporting/copies the aggregate amount of Subleases made any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by Tenant in accordance with payments by the Servicer pursuant to Section 22.33.26; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Leasethe Credit Enhancement Percentage for such Distribution Date; (xviii) The monthly reporting required pursuant to Section 4.1 hereofthe Net WAC Rate Carryover Amount for each Class of Class A Certificates, each Class of Mezzanine Certificates and the Class B Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenantany Overcollateralization Target Amount, ERI or any direct or indirect subsidiary of ERI Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the extent relevant to the calculation distribution of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereofprincipal on such Distribution Date; (xx) On an annual basis, when the Stepdown Date or a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) aboveTrigger Event has occurred; and106 (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:Available Funds; (Axxii) at the sole cost respective Pass-Through Rates applicable to each Class of Class A Certificates, each Class of Mezzanine Certificates, the Class B Certificates and expense the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Landlord, reasonably cooperate with Landlord Class A Certificates and each Class of Mezzanine Certificates for the immediately succeeding Distribution Date; (xxiii) the amount on deposit in providing information with respect the Dividend Account immediately prior to the Leased Property or any portion thereofrelated Servicer Remittance Date, Tenant or its Affiliates the amount deposited into the Dividend Account on the related Servicer Remittance Date (excluding separately identifying the amount received from Mortgagors and the amount advanced) and the amount withdrawn from the Dividend Account on the related Servicer Remittance Date (i) any material non-public information, (ii) any Competitively Sensitive Information, separately identifying the amount refunded to Mortgagors and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), amount distributed to the extent reasonably requested by holder of the Dividend Account Certificate on such Fee Mortgagee Distribution Date); (xxiv) payments, if any, made under the Cap Contract; (xxv) the amount on deposit in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agenciesGroup II Pre-Funding Account; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statement

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Financial Asset Secs Corp Asset Backed Cert Sers 2003 Ff5)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) Within ten (10) the Pool Balance at the Close of Business Days after at the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Daterelated Due Period; (vii) Within three (3) Business Days of obtaining actual knowledge the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the occurrence of a Tenant Event of Default (or Mortgage Loans as of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances)related Determination Date; (viii) Such additional customary the number and reasonable financial information related aggregate unpaid principal balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to any Facility59 days, Tenant(2) 60 to 89 days and (3) 90 or more days, CEOC(B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, ERI (2) 60 to 89 days and their Affiliates which shall be limited (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to balance sheets 59 days, (2) 60 to 89 days and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, 3) 90 or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder)more days, in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord Close of Business on or before twenty-five (25) days after the end last day of each the calendar month the following items as they pertain to each SPE Tenant: preceding such Distribution Date and (D) REO Properties; (A) a rent roll for the subject month, an occupancy report for dollar amount of payments received related to claims under the subject month, including an average daily rate PMI Policy during the related Prepayment Period (and revenue per available room for the subject monthnumber of Mortgage Loans to which such payments related); (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient the cumulative dollar amount of payments received related to fairly represent claims under the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses PMI Policy since the Closing Date (and the actual income number of Mortgage Loans to which such payments related); (C) the dollar amount of claims made under the PMI Policy that were denied during the Prepayment Period (and expensesthe number of Mortgage Loans to which such denials related); and (CD) PACE reports, in the form attached hereto as Exhibit I; dollar amount of the cumulative claims made under the PMI Policy that were denied since the Closing Date (ix) The compliance certificates, as and when required pursuant the number of Mortgage Loans to Section 4.3which such denials related); (x) The Annual Capital Budget the total number and cumulative principal balance of all REO Properties as and when required in Section 10.5(d)of the Close of Business of the last day of the preceding Prepayment Period; (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c)the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) Together with the monthly reporting required pursuant to aggregate amount of Realized Losses incurred during the preceding clause (xi), an updated rent roll related Prepayment Period and a summary the cumulative amount of all leasing activity then taking place at each FacilityRealized Losses; (xiii) Operating budget the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relatesDistribution Date; (xiv) Within five (5) Business Days the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates and the Class C Certificates, after request (or as soon thereafter as may be reasonably possible), giving effect to the distributions made on such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by LandlordDistribution Date; (xv) The quarterly reporting the Monthly Interest Distributable Amount in respect of Bookings required pursuant each Class of Class A Certificates, each Class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to Section 22.7 of this Leasethe Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date; (xvi) The reporting/copies the aggregate amount of Subleases made any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by Tenant in accordance with payments by the Servicer pursuant to Section 22.33.26; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Leasethe Credit Enhancement Percentage for such Distribution Date; (xviii) The monthly reporting required pursuant to Section 4.1 hereofthe Net WAC Rate Carryover Amount for the Class A-1 Certificates, the Class A-2 Certificates, the Class M-1 Certificates, the Class M-2A Certificates and the Class M-3 Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenantany Overcollateralization Target Amount, ERI or any direct or indirect subsidiary of ERI Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the extent relevant to the calculation distribution of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereofprincipal on such Distribution Date; (xx) On an annual basiswhen the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to each Class of Class A Certificates, a detailed reconciliation each Class of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Mezzanine Certificates and the Net Revenue statements that Tenant is providing Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to Landlord pursuant to clause (iv) above, which reconciliation shows how each Class of Class A Certificates and each Class of Mezzanine Certificates for the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) aboveimmediately succeeding Distribution Date; and (xxixxiii) In connection with the amount of payments, if any, made under the Cap Contracts, received by the Trustee and deposited into the Net WAC Rate Carryover Reserve Account for such Distribution Date. The Trustee will make such statement (and, at its option, any Fee Mortgagee Securitization, Tenant shall, upon additional files containing the written request of Landlord: same information in an alternative format) available each month to Certificateholders and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at "▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇▇". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (A▇▇▇) at ▇▇▇-▇▇▇▇. Parties that are unable to use the sole cost above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and expense of Landlord, reasonably cooperate with Landlord indicating such. The Trustee shall have the right to change the way such statements are distributed in providing information with respect order to make such distribution more convenient and/or more accessible to the Leased Property above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any portion thereof, Tenant or information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its Affiliates reasonable discretion (excluding without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) any material non-public information, (ii) any Competitively Sensitive Information, and through (iii) any information subject to bona fide confidentiality restrictions; providedabove, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions amounts shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material nonexpressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementoff Date.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Financial Asset Sec Corp Asset Backed Certs Ser 2002-2)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer pursuant to Sections 3.19 and 4.04, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which 104 foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (ix) [Reserved]; (x) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates, the Class B-1 Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of each Class of Class A Certificates, each Class of Mezzanine Certificates, the Class B-1 Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates, the Class B-1 Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.26; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for the Class A Certificates, the Mezzanine Certificates and the Class B-1 Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; 105 (xxii) the respective Pass-Through Rates applicable to each Class of Class A Certificates, each Class of Mezzanine Certificates, the Class B-1 Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Class A Certificates and each Class of Mezzanine Certificates for the immediately succeeding Distribution Date; and (xxiii) payments, if any, made under the Cap Contract. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at "▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇▇/invr". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (800) 735-7777. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthResidual Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient 106 to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Financial Asset Securities Corp Asset Back Certs Ser 03-2)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause prepare and post on its website at ▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇, a statement as to be furnished the following to Landlorddistributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31Class of Certificates allocable to principal, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)separately identified; (ii) As to CEOC:the applicable Record Date, accrual date and Determination Date; (Aiii) annual financial statements audited the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to interest or Class CE-1 Distributable Amount, separately identified; (iv) the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Targeted Overcollateralization Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (v) the aggregate amount of servicing compensation received by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year the Servicer during the related Collection Period; (vi) the aggregate amount of Advances for the related Collection Period; 104 (vii) the Pool Balance at the close of business at the end of the related Collection Period; (viii) the number, weighted average remaining term to maturity and containing statement weighted average Mortgage Interest Rate of profit the Mortgage Loans as of the related Due Date; (ix) the number and lossaggregate unpaid principal balance of Mortgage Loans (a) 31 to 60 days Delinquent, a balance sheet(b) 61 to 90 days Delinquent, and statement of cash flows for CEOC(c) 91 or more days Delinquent, together with (1d) a report thereon by such Accountant which report shall be unqualified as to scope which foreclosure proceedings have been commenced and (e) in bankruptcy as of audit the close of CEOC and its Subsidiaries and shall provide in substance business on the last day of the calendar month preceding such Distribution Date; (x) with respect to any Mortgage Loan that (A) became an REO Property during the preceding calendar month, the loan number of such Financial Statements present fairly Mortgage Loan, the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated unpaid principal balance and the results Principal Balance of their operations such Mortgage Loan as of the date it became an REO Property; (xi) the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cash flow for cumulative principal balance of all REO Properties as of the periods indicated in conformity with GAAP and close of business of the last day of the preceding Collection Period; (Bxii) that the audit by such Accountant aggregate amount of Principal Prepayments made during the related Prepayment Period; (xiii) the aggregate amount of prepayment penalties collected (including amounts deposited in connection with the full or partial waiver of such Financial Statements has been made in accordance with GAAP prepayment penalties pursuant to Section 3.01) during the related Collection Period and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying amounts thereof allocable to the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadlineClass P Certificates; (Bxiv) quarterly unaudited financial statementsthe aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xv) any material modifications, consisting extensions or waivers to the terms, fees, penalties or payments of a statement the related Mortgage Loans; (xvi) the Certificate Principal Balance, or Notional Amount, as applicable, of profit and losseach Class of Certificates, a balance sheetafter giving effect to the distributions, and statement allocations of cash flows Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xvii) the Accrued Certificate Interest in respect of each Class of the Class A, Class M and Class B Certificates for CEOCsuch Distribution Date, together with a certificateseparately identifying the portions thereof attributable to Net WAC Carryover Amounts, executed and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xviii) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the chief financial officer Servicer pursuant to Section 3.23; (xix) the amount of any Net Swap Payments or treasurer Swap Termination Payments paid or received by the Supplemental Interest Trust pursuant to the Swap Agreement and the amount of CEOC any Defaulted Swap Termination Payments paid by the Supplemental Interest Trust; 105 (Axx) certifying that no Tenant the amount, if any, received pursuant to the Cap Agreement and the amount thereof, if any, to be paid to each Class of Certificates; (xxi) the amount of the Trustee Fee paid; (xxii) the Net WAC Carryover Amounts distributed on such Distribution Date; (xxiii) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xxiv) whether a Trigger Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretois continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (Bxxv) certifying that the Available Funds; (xxvi) the rate at which interest accrues for each Class of Certificates for such Financial Statements fairly present, in all material respects, Distribution Date; (xxvii) the financial position Liquidation Report for such Distribution Date; (xxviii) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer or Seller during the related Collection Period and results indicating the Section of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and this Agreement requiring or allowing the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end purchase of each such Mortgage Loan; (xxix) the aggregate Principal Balance of the first three Mortgage Loans repurchased by the Servicer (3or an affiliate) Fiscal Quarters of each Fiscal Year during the related Collection Period in connection with Section 3.16; (commencing with xxx) the Fiscal Quarter ending March 31amount distributed to the Class CE-1, 2018Class CE-2, Class P, Class R and Class R-X Certificates; (xxxi) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadlinerelated Distribution Date; and (Cxxxii) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements amount of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings received with or reports respect to the related accrual period. Parties that are unable to use ▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇ are entitled to have a paper copy mailed to them via first class mail by calling the Trustee at (i800) 934-6802 and indicating such. The Trustee shall have the SEC under both right to change the Securities Act way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Exchange Act, including, but not limited Trustee shall provide timely and adequate notification to 10-Q Quarterly Reports, 10-K Annual Reports all above parties regarding any such changes. The Trustee may fully rely upon and registration statements shall have no liability with respect to be filed information with respect to the Mortgage Loans provided by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) Servicer. In the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause information furnished pursuant to subclauses (i), (iiiii) and (iii)iv) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant the amounts shall be expressed in accordance with GAAP covering such Fiscal Year and containing statement a separate section of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope a dollar amount for each Class for each $1,000 original dollar amount as of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and Cut-off Date. (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end Within a reasonable period of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of necessary to provide to such Person a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and statement containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses set forth in subclauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; (xvii) and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statement

Appears in 1 contract

Sources: Pooling and Servicing Agreement (C-Bass Mortgage Loan Asset-Backed Certificates, Series 2006-Cb8)

Statements. Tenant (a) On each Distribution Date, the Trustee shall furnish or cause make available to each Certificateholder, the Seller and the Rating Agency, a statement based, as applicable, on loan-level information obtained from the Servicer (the “Distribution Date Statement”) as to the distributions to be furnished the following to Landlordmade or made, as applicable, on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement Class of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect Certificates allocable to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)principal; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting Class of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed Certificates allocable to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowinterest; (iii) As to ERI: the Overcollateralized Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency Amount (Aif any) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount (if any) for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon the amount of servicing compensation received by the Servicer during the related Due Period and such other customary information as it is prepared and in no event later than sixty (60) days after the end of each Fiscal YearTrustee deems necessary or desirable, or which a statement of Net Revenue with respect Certificateholder reasonably requests, to each Facility with respect enable Certificateholders to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any Advances for the related Due Period and the amount of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)unreimbursed Advances; (vi) [Reserved]; (vii) the Net WAC at the Close of Business at the end of the related Due Period; (viii) [Reserved]; (ix) the aggregate Principal Balance of the One-Year LIBOR Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (x) the aggregate Principal Balance of the Six-Month LIBOR Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (xi) the number, weighted average remaining term to maturity and weighted average Loan Rate of the Mortgage Loans as of the related Due Date; (xii) the number and aggregate unpaid principal balance of Mortgage Loans, in the aggregate, (a) 30 to 59 days Delinquent, (b) 60 to 89 days Delinquent, (c) 90 or more days Delinquent, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy, in each case as of the close of business on the last day of the preceding calendar month; (xiii) the book value of any REO Property as of the Close of Business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Due Period; (xiv) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xv) the aggregate amount of Realized Losses incurred during the related Due Period and the cumulative amount of Realized Losses; (xvi) the Class Certificate Principal Balance of each Class of Certificates after giving effect to any distributions made thereon, on such Distribution Date; (xvii) the Interest Distributable Amount in respect of each Class of Certificates, for such Distribution Date and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xviii) the aggregate amount of any Net Interest Shortfalls and any Unpaid Interest Shortfall Amount for such Distribution Date; (xix) the Available Funds; (xx) the Pass-Through Rate for each Class of Certificates for such Distribution Date; (xxi) the aggregate Principal Balance of Mortgage Loans purchased hereunder by the Seller during the related Due Period, and indicating the relevant section of the Servicing Agreement, or the Section of this Agreement, as applicable, requiring or allowing the purchase of each such Mortgage Loan; (xxii) [Reserved]; (xxiii) [Reserved]; (xxiv) the amount of compensation received by the Trustee during the related Due Period; (xxv) the Credit Enhancement Percentage for such Distribution Date; (xxvi) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; and (xxvii) when the Stepdown Date or a Trigger Event has occurred. The Trustee will make the Distribution Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the other parties to this Agreement via the Trustee’s internet website. The Trustee’s internet website shall initially be located at “▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇▇/invr.” Assistance in using the website can be obtained by calling the Trustee’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such reports are distributed in order to make such distribution more convenient and/or more accessible to the parties, and the Trustee shall provide timely and adequate notification to all parties regarding any such change. In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-Off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) and (xxi) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished by the Trustee to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Certificateholders pursuant to any other provision requirements of this Lease;the Code as are in force from time to time. (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xxc) On each Distribution Date, the Trustee shall supply an annual electronic tape to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg Financial Markets, Inc. on a monthly basis, and shall supply an electronic tape to Loan Performance and Intex Solutions in a detailed reconciliation of the financial information being provided format acceptable to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Loan Performance and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described Intex Solutions on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementmonthly basis.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (FNBA Mortgage Loan Trust 2004 AR1)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Master Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the NIMS Insurer, the Master Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Master Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Master Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities);related Due Period; 108 (vi) the aggregate amount of interest and scheduled principal received or advanced by the Master Servicer with respect to the related Due Period; (vii) with respect to each Loan Group, the related group balance at the Close of Business at the end of the related Due Period; (viii) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date and the number and aggregate principal balance of all Subsequent Mortgage Loans added during the preceding Prepayment Period; (ix) the number and aggregate unpaid principal balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (x) the total number and cumulative principal balance of all Liquidated Mortgage Loans as of the Close of Business of the last day of the preceding Prepayment Period, prior to the reduction of each principal balance to zero; (xi) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xii) the aggregate amount of Principal Prepayments in full, the aggregate amount of Principal Prepayments in part and Net Liquidation Proceeds made during the related Prepayment Period; (xiii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xiv) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xv) the Certificate Principal Balance of each Class of Class A Certificates, each class of Mezzanine Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xvi) the Monthly Interest Distributable Amount in respect of each class of Class A Certificates, each class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date; (xvii) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Master Servicer pursuant to Section 3.26; (xviii) the Credit Enhancement Percentage for such Distribution Date; (xix) the Net WAC Rate Carryover Amount for each class of Class A Certificates and each class of Mezzanine Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xx) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xxi) when the Stepdown Date or a Trigger Event has occurred; (xxii) the Available Funds; (xxiii) the respective Pass-Through Rates applicable to each Class of Class A Certificates, each Class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Class A Certificates and each class of Mezzanine Certificates for the immediately succeeding Distribution Date; (xxiv) [reserved]; (xxv) [reserved]; (xxvi) the amount on deposit in the Pre-Funding Accounts and the Net WAC Rate Carryover Reserve Account; and (xxvii) for the distribution occurring on the Distribution Date immediately following the end of the Funding Period, the balance on deposit in the Group I Pre-Funding Account and/or the Group II Pre-Funding Account that has not been used to purchase Subsequent Group I Mortgage Loans and/or Subsequent Group II Mortgage Loans, as applicable, and that is being distributed to the related Class A Certificates as a mandatory distribution of principal, if any, on such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the NIMS Insurer and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at "w▇▇.▇▇▇▇▇▇▇.▇▇▇". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (301) 815-6600. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate 110 notification to all above parties regarding any such changes. As a condition to access the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the distribution date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to the NIMS Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall forward to the NIMS Insurer and the Class R Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items Trustee shall deliver to the NIMS Insurer and each Person who at any time during the calendar year was a Class R Certificateholder, if requested in writing by such Person, such information as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Class R Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2004-1)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by each Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Servicers and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of servicing compensation received by each Fiscal Year, a statement of Net Revenue Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances and/or Monthly Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties, as well as the aggregate principal balance of Mortgage Loans that were liquidated and the net proceeds resulting therefrom; (ix) [reserved]; (x) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period, separately indicating Principal Prepayments in full and Principal Prepayments in part; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses and the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the cumulative amount of Subsequent Recoveries received since the Closing Date; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of each Class of Floating Rate Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of each Class of Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to each Class of Floating Rate Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the GMACM pursuant to Section 3.24 or by Countrywide Servicing pursuant to Section 2.04 of Exhibit B; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for each Class of Floating Rate Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to each Class of Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Floating Rate Certificates for the immediately succeeding Distribution Date; (xxiii) payments, if any, made under the Cap Contract and the amount distributed to each Class of Certificates from payments made under the Cap Contract. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at "h▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/▇▇▇▇". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthResidual Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Soundview Home Loan Trust 2005-A)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Master Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the NIMS Insurer, the Master Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Master Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Master Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) with respect to each Loan Group, the related group balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date and the number and aggregate principal balance of all Subsequent Mortgage Loans added during the preceding Prepayment Period; (viii) the number and aggregate unpaid principal balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 113 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (ix) [reserved]; (x) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of each Class of Class A Certificates, each class of Mezzanine Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of each class of Class A Certificates, each class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Master Servicer pursuant to Section 3.26; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for each class of Class A Certificates and each class of Mezzanine Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to each Class of Class A Certificates, each Class of Mezzanine Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Class A Certificates and each class of Mezzanine Certificates for the immediately succeeding Distribution Date; (xxiii) (A) the amount of payments received related to claims under the PMI Policy during the related Prepayment Period (and the number of Mortgage Loans to which such payments related) and (B) the cumulative amount of payments received related to claims under the PMI Policy since the Closing Date (and the number of Mortgage Loans to which such payments related); (A) the dollar amount of claims made under the PMI Policy that were denied during the Prepayment Period (and the number of Mortgage Loans to which such denials related) and (B) the dollar amount of the cumulative claims made under the PMI Policy that were denied since the Closing Date (and the number of Mortgage Loans to which such denials related); (xxv) the amount on deposit in the Pre-Funding Accounts, the Interest Coverage Accounts and the Net WAC Rate Carryover Reserve Account; and (xxvi) for the distribution occurring on the Distribution Date immediately following the end of the Funding Period, the balance on deposit in the Group I Pre-Funding Account and/or the Group II Pre-Funding Account that has not been used to purchase Subsequent Group I Mortgage Loans and/or Subsequent Group II Mortgage Loans, as applicable, and that is being distributed to the related Class A Certificates as a mandatory distribution of principal, if any, on such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the NIMS Insurer and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (301) 815-6600. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the distribution date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to the NIMS Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall forward to the NIMS Insurer and the Class R Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items Trustee shall deliver to the NIMS Insurer and each Person who at any time during the calendar year was a Class R Certificateholder, if requested in writing by such Person, such information as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Class R Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Option One Mortgage Accep Corp Ast Back Certs Ser 2003-3)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause (i) prepare and forward by mail to be furnished each Holder of the following Regular Certificates and (ii) make available on its website at www.usbank.com/abs for access by e▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ Regular Certificates, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to the Holders of each SPE Tenant: Class of Certificates allocable to principal, separately identified; (ii) the amount of the distribution made on such Distribution Date to the Holders of each Class of Certificates allocable to interest or Class X Distributable Amount, separately identified; (iii) the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Overcollateralization Target Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by the Servicer during the related Collection Period; (v) the aggregate amount of Advances and Timing Advances for the related Collection Period; (vi) the Pool Balance at the close of business at the end of the related Collection Period; (vii) the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) the number and aggregate unpaid Principal Balance of Mortgage Loans (a) within ninety 30 to 59 days past due on a contractual basis, (90b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) with respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Mortgage Loan, the unpaid principal balance and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Prepayment Charges collected (including amounts deposited in connection with the full or partial waiver of such Prepayment Charges pursuant to Section 3.01) during the related Collection Period and the amounts thereof allocable to the Class X Certificates; (xiii) the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiv) the Certificate Principal Balance of each Class of Certificates, after giving effect to the distributions, and allocations of Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts and the Unpaid Realized Loss Amount, if any, with respect to each Class of Certificates; (xv) the Accrued Certificate Interest in respect of each Class of Offered Certificates for such Distribution Date, separately identifying the portions thereof attributable to Net Rate Carryover Amounts, and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xvi) [Reserved]; (xvii) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.23; (xviii) the amount of the Trustee Fee paid; (xix) the beginning and ending balances of the Basis Risk Reserve Fund on such Distribution Date, the Basis Risk Reserve Fund Deposit for such Distribution Date, and the Required Basis Risk Reserve Fund Amount for such Distribution Date; (xx) the Net Rate Carryover Amounts distributed on such Distribution Date, and any Net Rate Carryover Amounts remaining after giving effect to distributions thereof on such Distribution Date; (xxi) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xxii) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xxiii) the Available Funds; (xxiv) the rate at which interest accrues for each Class of Certificates for such Distribution Date; (xxv) the Liquidation Report for such Distribution Date; (xxvi) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer or Seller during the related Collection Period and indicating the Section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; and (xxvii) the aggregate Principal Balance of the Mortgage Loans repurchased by the Servicer (or an affiliate) during the related Collection Period in connection with Section 3.16. The Trustee may fully rely upon and shall have no liability with respect to information with respect to the Mortgage Loans provided by the Servicer. In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within a reasonable period of time after the end of each Fiscal Year (commencing with calendar year, the Fiscal Year ending December 31Trustee shall furnish to each Person who at any time during the calendar year was a Certificateholder of a Regular Certificate, 2017)if requested in writing by such Person, but if Guarantor such information as is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering reasonably necessary to provide to such Fiscal Year and containing Person a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after containing the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, information set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes); (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause subclauses (i), (ii), (xv) and (iii)xx) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering aggregated for such Fiscal Year and containing statement calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which Trustee shall be unqualified as deemed to scope of audit of ERI and its Subsidiaries and shall provide in substance have been satisfied to the extent that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which substantially comparable information shall be limited prepared and furnished by the Trustee to balance sheetsCertificateholders pursuant to any requirements of the Code as are in force from time to time. (c) On each Distribution Date, income statements, and statements the Trustee shall forward to the Residual Certificateholders a copy of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or the reports forwarded to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including Regular Certificateholders in respect of Landlord REIT’s qualification such Distribution Date with such other information as a REIT) and (iii) any other federal, state the Trustee deems necessary or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect appropriate. Such obligation of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished to Landlord no later than fifty-five (55) days following Residual Certificateholders by the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Bond Securitization LLC)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the NIMS Insurer, the Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date and the number and aggregate Stated Principal Balance of all Subsequent Mortgage Loans added during the Funding Period; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties, as well as the aggregate principal balance of Mortgage Loans that were liquidated and the net proceeds resulting therefrom; (ix) [reserved]; (x) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period, separately indicating Principal Prepayments in full and Principal Prepayments in part; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses and the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the cumulative amount of Subsequent Recoveries received since the Closing Date; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of each Class of Adjustable-Rate Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of each Class of Adjustable-Rate Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to each Class of Adjustable-Rate Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.24; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for each Class of Adjustable-Rate Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to each Class of Adjustable-Rate Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Adjustable-Rate Certificates for the immediately succeeding Distribution Date; (xxiii) payments, if any, made under the Cap Contract; (xxiv) the amount of any Net Swap Payments or Swap Termination Payments; (xxv) the amount on deposit in the Pre-Funding Accounts and the Interest Coverage Accounts; and (xxvi) for the distribution occurring on the Distribution Date immediately following the end of the Funding Period, the balance on deposit in the Group I Pre-Funding Account and/or the Group II Pre-Funding Account that has not been used to purchase Subsequent Group I Mortgage Loans and/or Subsequent Group II Mortgage Loans, as applicable, and that is being distributed to the related Class A Certificates as a mandatory distribution of principal, if any, on such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the NIMS Insurer, the Credit Risk Manager and the Rating Agencies via the Trustee’s internet website. The Trustee’s internet website shall initially be located at “ht▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/▇▇▇▇”. Assistance in using the website can be obtained by calling the Trustee’s customer service desk at (8▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee’s internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to the NIMS Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the NIMS Insurer and the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) a rent roll for the subject monthNIMS Insurer, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating incomeupon request, and other each Person who at any time during the calendar year was a Residual Certificateholder, if requested in writing by such Person, such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2005-Ffh4)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the NIMS Insurer, the Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Net Monthly Excess Cashflow, a balance sheetthe Overcollateralized Amount, and statement of cash flows for ERIthe Overcollateralization Release Amount, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount and the Senior Credit Enhancement Percentage as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared the fees and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect expenses of the periodic determination of the Variable Rent hereunder)Trust Fund accrued and paid on such Distribution Date and to whom such fees and expenses were paid; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to Advances for the related Due Period (including the general purpose of such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming AuthoritiesAdvances); (vi) the aggregate Principal Balance of the Mortgage Loans and any REO Properties as of the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) using the OTS Method (as described below) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties, as well as the aggregate principal balance of Mortgage Loans that were liquidated and the net proceeds resulting therefrom; (ix) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the calendar month preceding the related Distribution Date; (x) the aggregate amount of Principal Prepayments made during the related Prepayment Period, separately indicating Principal Prepayments in full and Principal Prepayments in part; (xi) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses and the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the cumulative amount of Subsequent Recoveries received since the Closing Date; (xii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account or the Distribution Account for such Distribution Date; (xiii) the Certificate Principal Balance of each Class of Floating Rate Certificates and the Class C Certificates, before and after giving effect to the distributions, and allocations of Realized Losses, made on such Distribution Date; (xiv) the Monthly Interest Distributable Amount in respect of each Class of Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to each Class of Floating Rate Certificates and the Class C Certificates for such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.24; (xvi) the Net WAC Rate Carryover Amount for each Class of Floating Rate Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xvii) whether the Stepdown Date or a Trigger Event has occurred, the Delinquency Percentage for such Distribution Date and the Realized Loss Percentage for such Distribution Date; (xviii) the total cashflows received and the general sources thereof (including amounts received from the Supplemental Interest Trust Trustee under the Interest Rate Swap Agreement, from the Cap Trustee under the Interest Rate Cap Agreement and from the Trustee under the Basis Risk Cap Agreement); (xix) the respective Pass-Through Rates applicable to each Class of Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Floating Rate Certificates for the immediately succeeding Distribution Date; (xx) the amount of any Net Swap Payments or Swap Termination Payments paid to the Swap Provider; and (xxi) the applicable Record Dates, Accrual Periods and Determination Dates for calculating distributions for such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders, the NIMS Insurer, the Credit Risk Manager and the Rating Agencies via the Trustee’s internet website. The Trustee’s internet website shall initially be located at “▇▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/invr”. Assistance in using the website can be obtained by calling the Trustee’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee’s internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. For all purposes of this Agreement, with respect to any Mortgage Loan, delinquencies shall be determined by the Trustee from information provided by the Servicer and reported by the Trustee based on the “OTS” methodology for determining delinquencies on mortgage loans similar to the Mortgage Loans. By way of example, a Mortgage Loan would be Delinquent with respect to a Monthly Payment due on a Due Date if such Monthly Payment is not made by the close of business on the Mortgage Loan’s next succeeding Due Date, and a Mortgage Loan would be more than 30-days Delinquent with respect to such Monthly Payment if such Monthly Payment were not made by the close of business on the Mortgage Loan’s second succeeding Due Date. The Servicer hereby represents and warrants to the Depositor that this delinquency recognition policy is not less restrictive than any delinquency recognition policy established by the primary safety and soundness regulator, if any, of the Servicer. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to the NIMS Insurer and each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the NIMS Insurer and the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) a rent roll for the subject monthNIMS Insurer, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating incomeupon request, and other each Person who at any time during the calendar year was a Residual Certificateholder, if requested in writing by such Person, such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2006-Ff16)

Statements. Tenant (a) Not later than 1:00 p.m., New York time, on the 18th calendar day of each month, or if such 18th day is not a Business Day, the immediately preceding Business Day, the Servicer shall furnish deliver to the Master Servicer who shall deliver to the Securities Administrator by electronic means reasonably acceptable to the Master Servicer, a computer file containing the loan level information set forth in Exhibits V, W and X hereto necessary to permit the Master Servicer to perform its obligations hereunder and the Securities Administrator to calculate the information required by clauses (i) through (xxv) below as of the end of the preceding Prepayment Period or cause Due Period, as applicable, and such other information as the Master Servicer or the Securities Administrator shall reasonably require, and the Seller hereby agrees to provide the Master Servicer and the Servicer with an amended Prepayment Charge Schedule, if required, at such time. Not later than each Distribution Date the Securities Administrator shall prepare a statement (the “Remittance Report”) containing the information set forth below with respect to such Distribution Date, which information shall be based solely upon the loan level information furnished by the following to LandlordServicer and the Master Servicer, as applicable, upon which the Securities Administrator shall conclusively rely without independent verification thereof: (i) As to Available Funds for each SPE Tenant: (a) within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year Loan Group and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments aggregate and the absence of footnotes)Certificate Rate for each Class for the related Distribution Date; (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each aggregate amount of the first three (3) Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) Certificates on such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowDistribution Date; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, distribution set forth in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to paragraph (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including above in respect of Landlord REIT’s qualification as a REIT) interest and (iii) the amount thereof in respect of any other federalClass Interest Carryover Shortfall, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowand the amount of any Class Interest Carryover Shortfall remaining; (iv) As soon as it is prepared the amount of the distribution set forth in paragraph (i) above in respect of principal and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof amount thereof in respect of the periodic determination of the Variable Rent hereunder)Class Principal Carryover Shortfall, and any remaining Class Principal Carryover Shortfall; (v) Prompt Notice to Landlord the amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, Group I Excess Interest and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)Group II Excess Interest paid as principal; (vi) the aggregate amount of the Servicing Fee, the Master Servicing Fee and the Tax Matters Fee for such Distribution Date, in each case by Loan Group; (vii) the Pool Balance and the aggregate Principal Balances of the Mortgage Loans in each Loan Group as of the close of business on the last day of the preceding Due Period; (viii) the Class Principal Balance of each Class of Certificates after giving effect to payments allocated to principal above; (ix) each Overcollateralization Amount, the Group I Required Overcollateralization Amount and the Group II Required Overcollateralization Amount as of the close of business on the Distribution Date, after giving effect to distributions of principal on such Distribution Date; (x) whether a Group I Cumulative Loss Event, a Group II Cumulative Loss Event, a Group I Delinquency Event or a Group II Delinquency Event has occurred and is continuing and the calculation thereof; (xi) the aggregate amount of Principal Prepayments received during the related Prepayment Period for each Loan Group; (xii) the amount of all Curtailments that were received during the Due Period for each Loan Group; (xiii) the principal portion of all Monthly Payments received during the Due Period for each Loan Group; (xiv) the interest portion of all Monthly Payments received on the Mortgage Loans during the Due Period for each Loan Group; (xv) the amount of the Monthly Advances and the Compensating Interest payment to be made on the Determination Date for each Loan Group; (xvi) the amount to be distributed to the Class P Certificates, Class BIO and Class R Certificateholders, respectively for the Distribution Date; (xvii) the weighted average remaining term to maturity of the Mortgage Loans and the weighted average Loan Rate as of the first day of the related Due Period for each Loan Group; (xviii) the amount of all payments or reimbursements to the Servicer pursuant to Sections 3.03(ii) and (vi) (as reported by the Servicer); (xix) the number of Mortgage Loans outstanding at the beginning and at the end of the related Due Period for each Loan Group; (xx) the amount of Liquidation Loan Losses experienced during the preceding Due Period and the Cumulative Net Losses as a percentage of the Cut-Off Date Pool Balance for each Loan Group; (xxi) for each Loan Group, as of the end of the preceding calendar month, the number and Principal Balance of Mortgage Loans which are 30-59 days delinquent; the number and Principal Balance of Mortgage Loans which are 60-89 days delinquent; the number and Principal Balance of Mortgage Loans which are 90 or more days delinquent (including the number and Principal Balance of Mortgage Loans which are in foreclosure; the number and Principal Balance of Mortgage Loans in bankruptcy; and the number and Principal Balance of Mortgage Loans which are REO Property, each separately set forth) for each Loan Group; (xxii) the amounts of Applied Realized Loss Amounts for each Loan Group for the applicable Due Period and the cumulative amount of Applied Realized Loss Amounts to date for each Loan Group; (xxiii) the number and aggregate Principal Balance of Mortgage Loans, other than Mortgage Loans in default or imminent default, that were modified by the Servicer during the related Due Period (as reported by the Servicer) for each Loan Group; (xxiv) the amount of Net Rate Cap Carryover distributed to each Class of Offered Certificates, stating separately any amounts received from the Cap Provider with respect to the Group I Interest Rate Cap Agreement, and the amount of Net Rate Cap Carryover remaining for each such Class; and (xxv) the amount on deposit in the Net Rate Cap Fund, and the amounts of each deposit and withdrawal from such Account. The Securities Administrator shall make available such report to the Servicer, the Master Servicer, the Trustee, the Seller, the Certificateholders, the Rating Agencies, Bloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) and Intex Solutions (at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the Distribution Date. The Securities Administrator may fully rely upon and shall have no liability with respect to information provided by the Servicer or the Master Servicer. In the case of information furnished pursuant to subclauses (ii), (iii), (iv) and (vi) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the related Cut-Off Date. The Securities Administrator will make the Remittance Report (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the parties to this Agreement via the Securities Administrator’s internet website. The Securities Administrator’s internet website shall initially be located at “▇▇▇.▇▇▇▇▇▇▇.▇▇▇”. Assistance in using the website can be obtained by calling the Securities Administrator’s customer service desk at (▇▇▇) ▇▇▇ ▇▇▇▇. Parties that are unable to use the above distribution options are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Securities Administrator shall have the right to change the way Remittance Reports are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Securities Administrator shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access the Securities Administrator’s internet website, the Securities Administrator may require registration and the acceptance of a disclaimer. The Securities Administrator will not be liable for the dissemination of information in accordance with this Agreement. The Securities Administrator shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Remittance Report and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party hereto). (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Securities Administrator shall furnish to each Person who at any time during the calendar year was a Holder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (iii) and (iv) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Securities Administrator shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Securities Administrator to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Securities Administrator shall make available to the Class R Certificateholders in the same manner as the Remittance Report is made available to all Certificateholders a copy of the occurrence of a Tenant Event of Default (or reports forwarded to the Holders of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificates in respect of any Facility), such Distribution Date and a written notice statement setting forth the amounts actually distributed to Landlord regarding the same, which notice shall include a detailed description of Class R Certificateholders on such Distribution Date together with such other information as the Tenant Event of Default (Securities Administrator deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Securities Administrator shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthClass R Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Class R Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Securities Administrator shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared by the Fiscal Year Tax Matters Persons and furnished to which such operating budget relates; (xiv) Within five (5) Business Days after request (Certificateholders by the Securities Administrator or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Tax Matters Person pursuant to any other provision requirements of the Code as from time to time in force. (e) The Servicer, the Master Servicer and the Securities Administrator shall furnish to the Depositor, the Seller, the Trustee and each Certificateholder (if requested in writing), during the term of this Lease; (xviii) The monthly reporting required pursuant Agreement, such periodic, special or other reports or information for which the Securities Administrator has the necessary information to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI prepare such report and in a format acceptable to the extent relevant to the calculation of Net Revenues hereunderSecurities Administrator, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basiswhether or not provided for herein, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) aboveas shall be necessary, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information reasonable or appropriate with respect to the Leased Property Certificateholder or any portion thereofotherwise with respect to the purposes of this Agreement, Tenant all such reports or its Affiliates information to be provided by and in accordance with such applicable instructions and directions (excluding if requested in writing) as the Certificateholder may reasonably require; provided that the Servicer, the Master Servicer and the Securities Administrator shall be entitled to be reimbursed by the Depositor, the Seller, the Trustee or such Certificateholder for their respective fees and actual expenses associated with providing such reports, if such reports are not generally produced in the ordinary course of their respective businesses or readily obtainable. (if) any material non-public information, (ii) any Competitively Sensitive InformationReports and computer diskettes or files furnished by the Servicer or the Master Servicer pursuant to this Agreement shall be deemed confidential and of a proprietary nature, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) copied or (iii) of this parenthetical), distributed except to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, law or to the extent accurate, approve (and Rating Agencies. No Person entitled to receive copies of such reports or diskettes or files or lists of Certificateholders shall use the extent inaccurate, identify information therein for the same with particularity) portions purpose of any Disclosure Document (soliciting the customers of the Seller or for any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared purpose except as set forth in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementthis Agreement.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Renaissance Home Equity Loan Trust 2004-4)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties, as well as the aggregate principal balance of Mortgage Loans that were liquidated and the net proceeds resulting therefrom; (ix) [reserved]; (x) the total number and cumulative principal balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period, separately indicating Principal Prepayments in full and Principal Prepayments in part; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses and the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the cumulative amount of Subsequent Recoveries received since the Closing Date; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of each Class of Floating Rate Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of each Class of Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to each Class of Floating Rate Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.26; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for each Class of Floating Rate Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to each Class of Floating Rate Certificates and the Class C Certificates for such Distribution Date and the Pass- 121 Through Rate applicable to each Class of Floating Rate Certificates for the immediately succeeding Distribution Date; and (xxiii) payments, if any, made under the Cap Contract. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at "h▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇▇/▇▇▇▇". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (800) 735-7777. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthResidual Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Fremont Home Loan Trust 2004-2)

Statements. Tenant (a) On each Distribution Date, based on the Mortgage Loan information contained in the Remittance Report, the Securities Administrator shall furnish or cause prepare and make available on its website at www.ctslink.com, a statement (the "Distribution Date Statement") as to be furnished the following to Landlord▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ns made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Certificates allocable to principal, separately identified and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, distribution made on such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, Distribution Date to the extent required as an Additional Fee Mortgagee RequirementHolders of the Class P Certificates from Prepayment Penalties, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Originator Prepayment Penalty Payment Amounts and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Penalty Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC:the Holders of each Class of Certificates allocable to interest or Class CE Distributable Amount, separately identified; (Aiii) annual financial statements audited the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Targeted Overcollateralization Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by CEOC’s Accountant the Servicer during the related Collection Period; (v) the aggregate amount of Advances for the related Collection Period, cumulative unreimbursed Advances and Servicing Advances and cumulative Nonrecoverable Advances; (vi) the Pool Balance, at the close of business at the end of the related Collection Period; (vii) the number, weighted average remaining term to maturity and weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans (a) 30 to 59 days past due on a contractual basis, (b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in accordance bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) with GAAP covering respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Fiscal Year Mortgage Loan, the unpaid Principal Balance of the REO Property as of the close of business on the last Business Day of such calendar month and containing statement the Principal Balance of profit such Mortgage Loan as of the date it became an REO Property; (x) the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and losscumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) separately stated for each Loan Group, a balance sheetthe aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) separately stated for each Loan Group, the aggregate amount of Realized Losses incurred during the related Collection Period and the cumulative amount of Realized Losses; (xiii) the Principal Balance of each Class of Certificates, after giving effect to the distributions, and statement allocations of cash flows Realized Losses or Applied Realized Loss Amounts, as applicable, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Realized Losses or Applied Realized Loss Amounts; (xiv) the Accrued Certificate Interest in respect of each Class of Certificates for CEOCsuch Distribution Date and any related Cap Carryover Amounts, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results respective portions thereof, if any, remaining unpaid following the distributions made in respect of their operations such Certificates on such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls and cash flow of any Compensating Interest for such Distribution Date, to the periods indicated extent not covered by payments by the Servicer pursuant to Section 3.23; (xvi) the Interest Percentage for each Class of Certificates, the amount of any Current Interest Shortfall and the amount of the distribution made to each Class of Certificates pursuant to Section 4.02(e) for such Distribution Date; (xvii) the Cap Carryover Amounts distributed on such Distribution Date, the amounts remaining after giving effect to distributions thereof on such Distribution Date and the amount of all Cap Carryover Amounts covered by withdrawals from the Reserve Account on such Distribution Date; (xviii) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xix) whether a Trigger Event has occurred and is continuing, and the cumulative Realized Losses, as a percentage of the original Pool Balance; (xx) the Available Funds; (xxi) the Pass-Through Rate for each Class of Certificates for such Distribution Date; (xxii) the information contained in conformity with GAAP the Liquidation Report for such Distribution Date; (xxiii) the aggregate Principal Balance of Mortgage Loans purchased by the Servicer or the Depositor during the related Prepayment Period and indicating the section of this Agreement requiring or allowing the purchase of each such Mortgage Loan; (Bxxiv) that the audit aggregate Principal Balance of the Mortgage Loans repurchased by such Accountant the Depositor during the related Prepayment Period in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadlineSection 3.16; (Bxxv) quarterly unaudited financial statements, consisting the amount of the Credit Risk Manager Fee paid; (xxvi) the Mortgage Loan identifying number of each Mortgage Loan with a Prepayment Penalty that was the subject of a statement of profit Principal Prepayment in full during the related Collection Period, the Prepayment Penalty listed on each related Mortgage Note and loss, a balance sheetthe Prepayment Penalty collected, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying Servicer Prepayment Penalty Payment Amount and the nature and extent thereof and any corrective action taken or proposed to be taken Originator Prepayment Penalty Payment Amount paid with respect thereto, and to each such Mortgage Loan; (Bxxvii) certifying that the amount of any Yield Maintenance Agreement Payments for such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadlineDistribution Date; and (Cxxviii) the amount of Subsequent Recoveries received during the related Prepayment Period. Assistance in using the Securities Administrator's website can be obtained by calling the Securities Administrator's customer service desk at (301) 815-6600. The Securities Administrator shall provide such additional information informa▇▇▇▇ ▇▇ ▇▇▇▇▇▇s that are unable to use the above distribution option by mailing to them via first class mail a paper copy of the Distribution Date Statement, upon request of any such party made by calling the customer service desk and unaudited quarterly financial information concerning indicating such. The Securities Administrator shall have the Leased Property and Tenant, which information shall be limited right to balance sheets, income statementschange the way such reports are distributed in order to make such distribution more convenient and/or more accessible to the parties, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act Administrator shall provide timely and adequate notification to all parties regarding any such change. The Securities Administrator may fully rely upon and shall have no liability with respect to information with respect to the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed Mortgage Loans provided by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) Servicer. In the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause information furnished pursuant to subclauses (i), (ii) and (iii)xiii) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant the amounts shall be expressed in accordance with GAAP covering such Fiscal Year and containing statement a separate section of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope a dollar amount for each Class for each $1,000 original dollar amount as of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and Closing Date. (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end Within a reasonable period of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Securities Administrator shall furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of necessary to provide to such Person a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and statement containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses set forth in subclauses (i), (ii) or (iii) of this parenthetical), (xiv) and (xvii) above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Securities Administrator shall be deemed to have been satisfied to the extent reasonably requested that substantially comparable information shall be prepared and furnished by such Fee Mortgagee the Securities Administrator to Certificateholders pursuant to any requirements of the Code as are in order force from time to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; andtime. (Bc) reviewOn each Distribution Date, re-review and, the Securities Administrator shall forward to the Residual Certificateholders a copy of the reports forwarded to the holder of any Regular Certificate in respect of such Distribution Date with such other information as the Securities Administrator deems necessary or appropriate. Such obligation of the Securities Administrator shall be deemed to have been satisfied to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any substantially comparable information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared and furnished to Residual Certificateholders by the Securities Administrator pursuant to any requirements of the Code as from time to time in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Wells Fargo Home Equity Asset-Backed Securities 2005-2 Trust)

Statements. Tenant (a) On each Distribution Date, based on the Mortgage Loan information contained in the Master Servicer's Certificate, the Securities Administrator shall furnish or cause to be furnished prepare and post on its website, initially located at www.ctslink.com, a statement (the following to Landlord"Distribution Date Statement") as t▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Certificates allocable to principal, separately identified and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, distribution made on such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, Distribution Date to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC:the Holders of each Class of Certificates allocable to interest or Class CE Distributable Amount, separately identified; (Aiii) annual financial statements audited the Overcollateralization Amount, the Overcollateralization Release Amount, the Overcollateralization Deficiency and the Targeted Overcollateralization Amount as of such Distribution Date and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such Distribution Date; (iv) the aggregate amount of servicing compensation received by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year the Servicer during the related Collection Period and containing statement the amount of profit Compensating Interest paid by the Servicer; (v) the aggregate amount of Advances for the related Collection Period, cumulative unreimbursed Advances, Servicing Advances, Capitalized Advance Amounts and losscumulative Nonrecoverable Advances; (vi) the Pool Balance, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results close of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after business at the end of the related Collection Period; (vii) the number, weighted average remaining term to maturity and the weighted average Mortgage Interest Rate of the Mortgage Loans as of the related Due Date; (viii) the number and aggregate unpaid principal balance of Mortgage Loans (a) 30 to 59 days past due on a contractual basis, (b) 60 to 89 days past due on a contractual basis, (c) 90 or more days past due on a contractual basis, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy as of the close of business on the last day of the calendar month preceding such Distribution Date; (ix) with respect to any Mortgage Loan that became an REO Property during the preceding calendar month, the loan number of such Mortgage Loan, the unpaid Principal Balance of the REO Property as of the close of business on the last Business Day of such calendar month and the Principal Balance of such Mortgage Loan as of the date it became an REO Property; (x) the book value of any REO Property as of the close of business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties as of the close of business of the last day of the preceding Collection Period; (xi) separately stated for each Fiscal Year Loan Group, the aggregate amount of Principal Prepayments made during the related Prepayment Period; (commencing with xii) separately stated for each Loan Group, the Fiscal Year ending December 31aggregate amount of Realized Losses incurred during the related Collection Period, 2017and the cumulative amount of Realized Losses; (xiii) but the Certificate Principal Balance of each Class of Certificates, after giving effect to the distributions, and allocations of Applied Realized Loss Amounts, made on such Distribution Date, separately identifying any reduction thereof due to allocations of Applied Realized Loss Amounts; (xiv) the Accrued Certificate Interest in respect of each Class of Certificates for such Distribution Date and any related Cap Carryover Amounts, and the respective portions thereof, if Guarantor any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xv) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.25; (xvi) the Cap Carryover Amounts distributed on such Distribution Date, the amounts remaining after giving effect to distributions thereof on such Distribution Date and the amount of all Cap Carryover Amounts covered by withdrawals from the Swap Account or the Cap Carryover Reserve Account on such Distribution Date; (xvii) any Overcollateralization Deficiency after giving effect to the distribution of principal on such Distribution Date; (xviii) whether a Trigger Event has occurred and is not continuing, and the cumulative Realized Losses, as a reporting company under percentage of the original Pool Balance; (xix) the Available Funds; (xx) only for so long as the Trust is subject to the Exchange ActAct reporting requirements, the Interest Rate Swap Agreement's "significance percentage" of the Pool Balance; (xxi) the information contained in no event later than five clause (5ii) Business Days before Landlord REIT’s of the Liquidation Report for such Distribution Date; (xxii) the aggregate Principal Balance of Mortgage Loans purchased or substituted by the Servicer, the Originator, the Seller or a Purchasing Party during the related Prepayment Period; (xxiii) the amount of the Credit Risk Manager Fee paid; (xxiv) the Mortgage Loan identifying number of each Mortgage Loan with a Prepayment Charge that was the subject of a Principal Prepayment in full during the related Prepayment Period, the Prepayment Charge listed on each related Mortgage Note and the Prepayment Charge collected and the Servicer Prepayment Charge Payment Amount paid by the Servicer with respect to each such Mortgage Loan; (xxv) the amount of Subsequent Recoveries received during the related Prepayment Period; (xxvi) the amount and recipient of any Net Swap Payments and Swap Termination Payments, if any, and Replacement Swap Provider Payments (if any); (xxvii) the date of such Distribution Date and the Determination Date for such Distribution Date; (xxviii) any expenses or indemnification amounts paid by the Trust Fund, the specific purpose of each payment and the parties to whom these payments are made; (xxix) for each Class, the applicable Record Date, LIBOR Determination Date and Interest Accrual Period; (xxx) unless such information is otherwise set forth in Form 10-K filing deadlineD relating to such Distribution Date, any material breaches of representations and warranties relating to the Mortgage Loans or material breaches of transaction covenants or representations and warranties; (Bxxxi) quarterly unaudited financial statementsfor each Class, consisting of a statement of profit and lossthe applicable Certificate Interest Rate, a balance sheetif applicable, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred orapplicable Pass-Through Rate, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadlinedifferent; and (Cxxxii) such additional information and unaudited quarterly financial information concerning with respect to modified Mortgage Loans individually or in the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flowaggregate, as Landlord, PropCo 1, PropCo or Landlord REIT may require applicable: (a) the percentage (based upon the aggregate unpaid principal balance of Mortgage Loans) and the number of Mortgage Loans that were modified in the related Collection Period; (b) the cumulative percentage (by Cut-Off Date Principal Balance) of modified Mortgage Loans; (c) the amount of principal forgiven with respect to modified Mortgage Loans for any ongoing filings the related Collection Period; (d) the cumulative amount of principal forgiven with or reports respect to modified Mortgage Loans from the Closing Date to such Distribution Date; (e) the percentage (based upon the aggregate unpaid principal balance of Mortgage Loans) of modified Mortgage Loans that are included in the definition of 60+ Day Delinquent Loan; (f) the delinquency status of the modified Mortgage Loan both before and after modification; (g) the number of times the Mortgage Loan has been subject to modification; (h) the effective date of the modification; (i) the SEC under both number of modifications made to Mortgage Loans in the last twelve months; (j) the percentage (based upon the aggregate unpaid principal balance of Mortgage Loans) of modified Mortgage Loans which are current or delinquent in payment and the delinquency status of the modified Mortgage Loans from the Closing Date; and (k) the Mortgage Interest Rate of the modified Mortgage Loans before and after modification. The Securities Administrator may fully rely upon and shall have no liability with respect to information with respect to the Mortgage Loans provided by the Master Servicer. In determining whether a breach of a representation or warranty relating to the Mortgage Loans is material or whether a breach of a transaction covenant or representation or warranty is material for purposes of subclause (xxx) above, the Securities Act Administrator may consult with the Depositor and rely on the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during Depositor's determination of materiality. In the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause information furnished pursuant to subclauses (i), (ii) and (iii)xiii) above, subject to Section 23.1(c) below; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant the amounts shall be expressed in accordance a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. The Securities Administrator will also make available copies of the periodic reports the Securities Administrator prepares and files with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERIthe Commission, including distribution reports on Form 10-D, annual reports on Form 10-K, current reports on Form 8-K and amendments to these reports available through www.ctslink.com promptly (but no later than one Business Day) after t▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇dministrator has filed such reports with the report thereon by such Accountant which Commission. In addition, the Swap Provider shall be unqualified provided the same access as Certificateholders to scope of audit of ERI and its Subsidiaries and shall provide in substance the Distribution Date Statements that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and are made available through www.ctslink.com. (b) that Within a reasonable period of time after ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇ calendar year, the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which Securities Administrator shall be provided within ninety (90) days after furnish to the end of NIMS Insurer and each Fiscal Year (commencing with Person who at any time during the Fiscal Year ending December 31, 2017) but if Guarantor is not calendar year was a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting Certificateholder of a statement of profit and lossRegular Certificate, a balance sheetif requested in writing by such Person, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) below; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder); (v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities); (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of necessary to provide to such Person a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and statement containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses set forth in subclauses (i), (ii) or (iii) of this parenthetical), (xiv) and (xvi) above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Securities Administrator shall be deemed to have been satisfied to the extent reasonably requested that substantially comparable information shall be prepared and furnished by such Fee Mortgagee the Securities Administrator to Certificateholders pursuant to any requirements of the Code as are in order force from time to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; andtime. (Bc) reviewOn each Distribution Date, re-review and, the Securities Administrator shall forward to each Residual Certificateholder a copy of the reports forwarded to the Regular Certificateholders in respect of such Distribution Date with such other information as the Securities Administrator deems necessary or appropriate. Such obligation of the Securities Administrator shall be deemed to have been satisfied to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any substantially comparable information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared and furnished to each Residual Certificateholder by the Securities Administrator pursuant to any requirements of the Code as from time to time in compliance with applicable federal securities lawsforce. (d) For all purposes of this Agreement including, including Regulation S-X but not limited to, providing the information set forth in clause (and for any prior periods required thereunderviii) of Section 4.06(a), if with respect to any Mortgage Loan, delinquencies shall be determined and reported based on the so-called "OTS" methodology for determining delinquencies on mortgage loans similar to the extent Mortgage Loans. By way of example, a Mortgage Loan would be one payment delinquent with respect to a Monthly Payment due on a Due Date if such compliance Monthly Payment is not made by the close of business on the Mortgage Loan's next succeeding Due Date, and a Mortgage Loan would be two payments delinquent with federal securities lawsrespect to such Monthly Payment if such Monthly Payment were not made by the close of business on the Mortgage Loan's second succeeding Due Date. The Servicer hereby represents and warrants to the Depositor and the Master Servicer that this delinquency recognition policy is its current policy and is not less restrictive than any delinquency recognition policy established by the primary safety and soundness regulator, including Regulation S-X (and for any prior periods required thereunder)if any, is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementof the Servicer.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (ABFC 2007-Wmc1 Trust)

Statements. Tenant (a) Based solely upon the information provided to it by the Servicers pursuant to Section 7.08(d) hereof, not later than each Distribution Date, the Trustee shall furnish or cause make available on its website initially located at ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇ to be furnished the Depositor, each Owner, the Servicers, the Certificate Insurer and the Rating Agencies a statement setting forth the following to Landlordinformation: (i) As to each SPE Tenant: (a) within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries aggregate amount on a consolidated basis in accordance with GAAP (subject, deposit in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Certificate Account on such Distribution Date; (ii) As to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Accrued Certificate Interest, a balance sheetInterest Shortfall Carryforward Amount, if any, the Basis Risk Carry Forward Amount, if any, and statement of cash flows for CEOCthe Principal Distribution Amount, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretoto each Class individually, all Classes of which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with Offered Certificates in the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes)aggregate, all Classes of which shall be provided (x) within sixty (60) days after Class A Certificates in the end aggregate and all Classes of each of Class B Certificates in the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowaggregate; (iii) As the Pass-Through Rate for each Class of Certificates applicable to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance the related Accrual Period and LIBOR applicable to the Certificates with GAAP covering respect to such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and the application of the amounts described in no event later than sixty clause (60ii) days after the end of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject above to the additional requirements as provided allocation and distribution of payment to the holders of Class A, Class M-1 and Class B Certificates and the amount of Prepayment Penalties attributable to the Household Mortgage Loans distributable to the Class P Certificates, on the next Distribution Date in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)accordance with this Agreement; (v) Prompt Notice to Landlord the Certificate Balance of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any each Class of which is called a “Proceeding”), known to TenantClass A Certificates and Class B Certificates and the Class M-1 Certificates, the result aggregate amount of which Proceeding would reasonably be expected the interest and principal of each Class of Offered Certificates to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) paid on such Distribution Date and the remaining Certificate Balance of each Class of Offered Certificates following any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)such payment; (vi) Within ten (10) Business Days after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements theretoInsured Payments, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Dateif any; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall takeamount, if any, to remedy such Tenant Event of Default (or such facts or circumstances)any Realized Losses for the related Collection Period in the aggregate, for each Class of Offered Certificates and the amount of Cumulative Realized Losses as of the last day of the related Collection Period; (viii) Such additional customary and reasonable financial information related to any Facilitywhether a Fairbanks Termination Trigger Event, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, Wilshire Termination Trigger Event or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit IGreenPoint Termination Trigger Event has occurred; (ix) The compliance certificates, as and when required pursuant the amount of the distribution with respect to Section 4.3each Class of Offered Certificates (based on a Certificate in the original principal amount of $1,000); (x) The Annual Capital Budget as and when required in Section 10.5(d)the amount of such distribution allocable to principal of the Mortgage Loans, separately identifying the aggregate amount of any Principal Prepayments, Loan Purchase Price amounts or other recoveries of principal included therein; (xi) The monthly revenue and Capital Expenditure reporting required pursuant the amount of such distribution allocable to Section 10.5(cinterest on the Mortgage Loans (based on a Certificate in the original principal amount of $1,000); (xii) Together with the monthly reporting required pursuant principal amount, if any, of each Class of the Offered Certificates (based on a Certificate in the original principal amount of $1,000) which will be outstanding after giving effect to the preceding clause (xi), an updated rent roll and a summary any payment of all leasing activity then taking place at each Facilityprincipal on such Distribution Date; (xiii) Operating budget for each SPE Tenant for each Fiscal Yearthe aggregate Pool Balance of all Mortgage Loans, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement as of the Fiscal Year to which such operating budget relateslast day of the related Collection Period; (xiv) Within five (5) Business Days after request (or as soon thereafter based upon information furnished by the Depositor such information as may be reasonably possible), such further detailed information reasonably available required by Section 6049(d)(7)(C) of the Code to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlordassist the Certificateholders in computing their market discount; (xv) The quarterly reporting in respect the weighted average interest rate of Bookings required pursuant to Section 22.7 of this Leasethe Mortgage Loans; (xvi) The reporting/copies the weighted average remaining term of Subleases made by Tenant in accordance with Section 22.3the Mortgage Loans; (xvii) Any notices the number and Stated Principal Balance of the Mortgage Loans that were 60 days or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision more Delinquent for each of this Leasethe preceding three months as of the close of business on the last Business Day of the calendar month next preceding the Distribution Date; (xviii) The monthly reporting required pursuant such other information as the Depositor may reasonably request with respect to Section 4.1 hereofMortgage Loans that are Delinquent; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 the Stated Principal Balance of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereoflargest Mortgage Loans outstanding; (xx) On an annual basisthe number, a detailed reconciliation aggregate Stated Principal Balances and percentage of Mortgage Loans that are: (A) 30-59 days Delinquent, (B) 60-89 days Delinquent and (C) 90-119 days Delinquent, (D) 120-149 days Delinquent, (E) 150-179 days Delinquent and (F) 180 or more days Delinquent, as of the financial information being provided to Landlord pursuant to clause (xix) above (close of business on the “WH Net Revenue”) last Business Day of the calendar month next preceding the Distribution Date and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; andaggregate number and aggregate Stated Principal Balance of such Mortgage Loans; (xxi) In connection with any Fee Mortgagee Securitizationthe status, Tenant shallthe number, upon and the written request Stated Principal Balances of Landlord:all Mortgage Loans that are in foreclosure proceedings as of the close of business on the last Business Day of the calendar month next preceding such Distribution Date; (xxii) the number of Mortgagors and the Stated Principal Balances of the related Mortgages for all Mortgage Loans involved in bankruptcy proceedings and whether such Mortgage Loans are (A) at 30-59 days Delinquent, (B) 60-89 days Delinquent and (C) 90-119 days Delinquent, (D) 120-149 days Delinquent, (E) 150-179 days Delinquent and (F) 180 or more days Delinquent, as of the sole cost close of business on the last Business Day of the calendar month next preceding such Distribution Date; (xxiii) the number of Mortgagors and expense the Stated Principal Balances of Landlordthe related Mortgages for all Mortgage Loans involved in foreclosure proceedings and whether such Mortgage Loans are (A) 30-59 days Delinquent, reasonably cooperate with Landlord (B) 60-89 days Delinquent and (C) 90-119 days Delinquent, (D) 120-149 days Delinquent, (E) 150-179 days Delinquent and (F) 180 or more days Delinquent, as of the close of business on the last Business Day of the calendar month next preceding such Distribution Date; (xxiv) the existence and status of any Mortgaged Properties for all Mortgage Loans as to which title has been taken in providing information the name of, or on behalf of the Trustee, as of the close of business of the last Business Day of the month next preceding the Distribution Date; (xxv) the book value of any real estate acquired through foreclosure or grant of a deed in lieu of foreclosure for all Mortgage Loans as of the close of business on the last Business Day of the calendar month next preceding the Distribution Date; (xxvi) the number of Mortgage Loans; (xxvii) identifying the aggregate amount received from: a. Curtailments; b. voluntary payoffs; c. Involuntary Payoffs (the amount of Net Liquidation Proceeds applicable to the unpaid principal balance from the loan); and d. Mortgage Loans purchased from the Trust; as of the close of business on the last Business Day of the related Collection Period; (xxviii) the number and Stated Principal Balance of all Mortgage Loans that are subject to loss mitigation as of the close of business on the last Business Day of the calendar month next preceding the Distribution Date; (xxix) the number and Stated Principal Balance of Mortgage Loans that are being contested because of Section 32 of the Truth in Lending Act; (xxx) the amount of current and cumulative Realized Losses (separately identifying principal and interest losses) from following resolution types: a. REO Property sold; b. short sale; c. deed in lieu; d. no equity second mortgages; and e. other; as of the close of business on the last Business Day of the related Collection Period; (xxxi) the number and Pool Balance with respect to each product type of all Mortgage Loans in Chapter 13 of the Leased Property or any portion thereof, Tenant or its Affiliates United States Bankruptcy Code (excluding (i"CHAPTER 13 LOANS") any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject separately identifying: a. those Chapter 13 Loans that are currently meeting their payment plan; b. those Chapter 13 Loans that are 1 to bona fide confidentiality restrictions; provided, however, 2 payments behind their payment plan; c. those Chapter 13 Loans that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), are 2 to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statement3 payments behind their payment plan;

Appears in 1 contract

Sources: Trust and Servicing Agreement (Gs Mortgage Sec Corp Mort Pass THR Cert Ser 2003-1)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer pursuant to Sections 3.19 and 4.04, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Servicer with respect to each Facility with respect the related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date and the number and aggregate Stated Principal Balance of all Subsequent Mortgage Loans added during the Funding Period; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties; (ix) [Reserved]; (x) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period, the cumulative amount of Realized Losses and the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the cumulative amount of Subsequent Recoveries received since the Closing Date; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of the Class A Certificates, the Mezzanine Certificates, the Class B Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of each Class of Class A Certificates, each Class of Mezzanine Certificates, each Class of Class B Certificates and the Class C Certificates for such Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect to the Class A Certificates, the Mezzanine Certificates, the Class B Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Net Prepayment Interest Shortfalls for such Distribution Date; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for the Class A Certificates, the Mezzanine Certificates and the Class B Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to each Class of Class A Certificates, each Class of Mezzanine Certificates, each Class of Class B Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Class A Certificates and each Class of Mezzanine Certificates and the Class B Certificates for the immediately succeeding Distribution Date; (xxiii) payments, if any, made under the Cap Contract; (xxiv) the amount on deposit in the Pre-Funding Accounts and the Interest Coverage Accounts; and (xxv) for the distributions occurring on the Distribution Dates in the month following the end of the Funding Period, the balance on deposit in each of the Pre-Funding Accounts (exclusive of any investment income therein) not used to purchase Subsequent Mortgage Loans and that is being distributed to the related Class A Certificates as a mandatory distribution of principal, if any, on such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at "▇▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/invr". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) through (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthResidual Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Meritage Mortgage Loan Trust 2005-2)

Statements. Tenant (a) On each Distribution Date, based, as applicable, on information provided to it by the Servicer, the Trustee shall furnish or cause prepare and make available to be furnished each Holder of the following Regular Certificates, the Servicer and the Rating Agencies, a statement as to Landlordthe distributions made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Regular Certificates, separately identified, allocable to principal and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, distribution made to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by Holders of the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Class P Certificates allocable to Prepayment Charges and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year Class of Regular Certificates (commencing with other than the Fiscal Year ending December 31Class P Certificates) allocable to interest, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralized Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency Amount and the results Overcollateralization Target Amount as of their operations such Distribution Date and cash flow the Excess Overcollateralized Amount for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with Mortgage Pool for such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue servicing compensation received by the Servicer with respect to each Facility with respect the related Due Period and such other customary information as the 112 Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to such Fiscal Year (subject enable Certificateholders to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, Advances for the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)related Due Period; (vi) the Pool Balance at the Close of Business at the end of the related Due Period; (vii) the number, aggregate Stated Principal Balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans as of the related Determination Date and the number and aggregate Stated Principal Balance of all Subsequent Mortgage Loans added during the Funding Period; (viii) the number and aggregate unpaid Stated Principal Balance of Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close of Business on the last day of the calendar month preceding such Distribution Date and (D) REO Properties, as well as the aggregate principal balance of Mortgage Loans that were liquidated and the net proceeds resulting therefrom; (ix) [reserved]; (x) the total number and cumulative Stated Principal Balance of all REO Properties as of the Close of Business of the last day of the preceding Prepayment Period; (xi) the aggregate amount of Principal Prepayments made during the related Prepayment Period, separately indicating Principal Prepayments in full and Principal Prepayments in part; (xii) the aggregate amount of Realized Losses incurred during the related Prepayment Period and the cumulative amount of Realized Losses and the aggregate amount of Subsequent Recoveries received during the related Prepayment Period and the cumulative amount of Subsequent Recoveries received since the Closing Date; (xiii) the aggregate amount of extraordinary Trust Fund expenses withdrawn from the Collection Account for such Distribution Date; (xiv) the Certificate Principal Balance of each Class of Adjustable-Rate Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date; (xv) the Monthly Interest Distributable Amount in respect of each Class of Adjustable-Rate Certificates and the Class C Certificates for such Distribution Date and 113 the Unpaid Interest Shortfall Amount, if any, with respect to each Class of Adjustable-Rate Certificates and the Class C Certificates for such Distribution Date; (xvi) the aggregate amount of any Prepayment Interest Shortfalls for such Distribution Date, to the extent not covered by payments by the Servicer pursuant to Section 3.24; (xvii) the Credit Enhancement Percentage for such Distribution Date; (xviii) the Net WAC Rate Carryover Amount for each Class of Adjustable-Rate Certificates, if any, for such Distribution Date and the amount remaining unpaid after reimbursements therefor on such Distribution Date; (xix) any Overcollateralization Target Amount, Overcollateralized Amount and Overcollateralization Deficiency Amount after giving effect to the distribution of principal on such Distribution Date; (xx) when the Stepdown Date or a Trigger Event has occurred; (xxi) the Available Funds; (xxii) the respective Pass-Through Rates applicable to each Class of Adjustable-Rate Certificates and the Class C Certificates for such Distribution Date and the Pass-Through Rate applicable to each Class of Adjustable-Rate Certificates for the immediately succeeding Distribution Date; (xxiii) payments, if any, made under the Cap Contract; (xxiv) the amount on deposit in the Pre-Funding Accounts and the Interest Coverage Accounts; and (xxv) for the distribution occurring on the Distribution Date immediately following the end of the Funding Period, the balance on deposit in the Group I Pre-Funding Account and/or the Group II Pre-Funding Account that has not been used to purchase Subsequent Group I Mortgage Loans and/or Subsequent Group II Mortgage Loans, as applicable, and that is being distributed to the related Class A Certificates as a mandatory distribution of principal, if any, on such Distribution Date. The Trustee will make such statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the Rating Agencies via the Trustee's internet website. The Trustee's internet website shall initially be located at "▇▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/invr". Assistance in using the website can be obtained by calling the Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Trustee shall have the right to change the way such statements are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. As a condition to access to the Trustee's internet website, the Trustee may require registration and the acceptance of a disclaimer. The Trustee will not be liable for the dissemination of information in accordance with this Agreement. The Trustee shall also be entitled to rely on but shall not be responsible for the content or accuracy of any information provided by third parties for purposes of preparing the Distribution Date statement and may affix thereto any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party thereto). In the case of information furnished pursuant to subclauses (i) through (iii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Trustee shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) and (ii) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date;Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any requirements of the Code as are in force from time to time. (viic) Within three (3) Business Days of obtaining actual knowledge On each Distribution Date, the Trustee shall make available to the Residual Certificateholders a copy of the occurrence of a Tenant Event of Default (or of reports forwarded to the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Regular Certificateholders in respect of any Facility), a written notice to Landlord regarding such Distribution Date with such other information as the same, which notice shall include a detailed description of the Tenant Event of Default (Trustee deems necessary or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);appropriate. (viiid) Such additional customary and Within a reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any period of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days time after the end of each calendar month year, the following items as they pertain Trustee shall deliver to each SPE Tenant: (A) Person who at any time during the calendar year was a rent roll for the subject monthResidual Certificateholder, an occupancy report for the subject monthif requested in writing by such Person, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other such information as is reasonably necessary and sufficient to fairly represent provide to such Person a statement containing the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required information provided pursuant to the preceding clause (xi), an updated rent roll and previous paragraph aggregated for such calendar year or applicable portion thereof during which such Person was a summary Residual Certificateholder. Such obligation of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which the Trustee shall be delivered deemed to Landlord no later than fifty-five (55) days following have been satisfied to the commencement of extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Trustee pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 requirements of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI Code as from time to the extent relevant to the calculation of Net Revenues hereunder, time in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementforce.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2004-Ffh4)

Statements. Tenant (a) On each Distribution Date, based on the Mortgage Loan information contained in the Remittance Report, the Trustee shall furnish or cause prepare and post on its website at www.ctslink.com, a statement (the "Distribution Date Statement") as to be furnished the following to Landlord▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ns made on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with Class of Certificates allocable to principal, separately identified and the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each amount of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, distribution made on such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect to such financial statements, Distribution Date to the extent required as an Additional Fee Mortgagee RequirementHolders of the Class P Certificates allocable to Prepayment Charges, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position Originator Prepayment Charge Payment Amounts and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)Servicer Prepayment Charge Payment Amounts; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31Class of Certificates allocable to interest or Class CE Distributable Amount, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowseparately identified; (iii) As to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossthe Overcollateralization Amount, a balance sheetthe Overcollateralization Release Amount, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated Overcollateralization Deficiency and the results Targeted Overcollateralization Amount as of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments Distribution Date and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowDistribution Date; (iv) As soon as it is prepared and in no event later than sixty (60) days after the end aggregate amount of each Fiscal Year, a statement of Net Revenue with respect to each Facility with respect to such Fiscal Year (subject to servicing compensation received by the additional requirements as provided in Section 3.2 hereof in respect of Master Servicer during the periodic determination of the Variable Rent hereunder)related Collection Period; (v) Prompt Notice to Landlord the aggregate amount of any actionAdvances for the related Collection Period, proposal or investigation by any agency or entity, or complaint to such agency or entity (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, cumulative unreimbursed Advances and (2) the status of non-routine matters before any applicable gaming authorities, Servicing Advances and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)cumulative Nonrecoverable Advances; (vi) Within ten (10) Business Days after the Pool Balance, at the close of business at the end of each calendar monththe related Collection Period; (vii) the number, a schedule containing any additions weighted average remaining term to or retirements maturity and weighted average Mortgage Interest Rate of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical cost, the amount of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology for propco-opco separation used Mortgage Loans as of the Commencement related Due Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this Lease; (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xx) On an annual basis, a detailed reconciliation of the financial information being provided to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statement

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Asset-Backed Funding Corp. ABFC Asset Backed Certificates, Series 2004-Opt5)

Statements. Tenant (a) On each Distribution Date, the Securities Administrator shall furnish or cause make available to the Trustee, each Certificateholder, the Seller, the Master Servicer and the Rating Agency, a statement based, as applicable, on loan-level information obtained from the Master Servicer and the Servicers (the “Distribution Date Statement”) as to the distributions to be furnished the following to Landlordmade or made, as applicable, on such Distribution Date: (i) As the amount of the distribution made on such Distribution Date to each SPE Tenant: (a) within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing a statement Class of profit and loss, a balance sheet, and a statement of cash flows for such SPE Tenant; and (b) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline, such SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and a statement of cash flows, in each case, with respect Certificates allocable to such financial statements, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of such SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of such SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes)principal; (ii) As the amount of the distribution made on such Distribution Date to CEOC: (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed by the chief financial officer or treasurer of CEOC certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all of which shall be provided within ninety (90) days after the end Holders of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting Class of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed Certificates allocable to be taken with respect thereto, and (B) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowinterest; (iii) As the Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage and Subordinate Prepayment Percentage with respect to ERI: (A) annual financial statements audited by ERI’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for ERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of ERI and its Subsidiaries as at the dates indicated and the results of their operations and cash flow each Loan Group for the periods indicated in conformity with GAAP and (b) that the audit by ERI’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-K filing deadline; (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for ERI, together with a certificate, executed by the chief financial officer or treasurer of ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of ERI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017) but if Guarantor is not a reporting company under the Exchange Act, in no event later than five (5) Business Days before Landlord REIT’s applicable Form 10-Q filing deadline; and (C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) the SEC under both the Securities Act and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a REIT) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT subject to Section 23.1(c) belowfollowing Distribution Date; (iv) As soon the aggregate amount of servicing compensation received by each Servicer during the related Due Period and such other customary information as it is prepared and in no event later than sixty (60) days after the end of each Fiscal YearTrustee deems necessary or desirable, or which a statement of Net Revenue with respect Certificateholder reasonably requests, to each Facility with respect enable Certificateholders to such Fiscal Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)prepare their tax returns; (v) Prompt Notice to Landlord the aggregate amount of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity (any Advances for the related Due Period and the amount of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, (x) any Gaming License, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property which, in any case under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of any Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, and (2) the status of non-routine matters before any applicable gaming authorities, and (B) promptly deliver to Landlord copies of any and all non-routine notices received (or sent) by Tenant from (or to) any Gaming Authorities)unreimbursed Advances; (vi) the Special Hazard Loss Coverage Amount, the Fraud Loss Coverage Amount and the Bankruptcy Loss Coverage Amount, each as of the related Determination Date; (vii) the Loan Group Balance and related Net WAC for each Loan Group at the Close of Business at the end of the related Due Period; (viii) for each Loan Group, the aggregate Principal Balance of the One-Year CMT Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (ix) for each Loan Group, the aggregate Principal Balance of the One-Month LIBOR Indexed, Six-Month LIBOR Indexed and One-Year LIBOR Indexed Mortgage Loans at the Close of Business at the end of the related Due Period; (x) [reserved] (xi) for each Loan Group, the number, weighted average remaining term to maturity and weighted average Loan Rate of the related Mortgage Loans as of the related Due Date; (xii) the number and aggregate unpaid principal balance of Mortgage Loans, in the aggregate and for each Loan Group, (a) 30 to 59 days Delinquent, (b) 60 to 89 days Delinquent, (c) 90 or more days Delinquent, (d) as to which foreclosure proceedings have been commenced and (e) in bankruptcy, in each case as of the close of business on the last day of the preceding calendar month; (xiii) the book value of any REO Property as of the Close of Business on the last Business Day of the calendar month preceding the Distribution Date, and, cumulatively, the total number and cumulative principal balance of all REO Properties in each Loan Group as of the Close of Business of the last day of the preceding Due Period; (xiv) the aggregate amount of Principal Prepayments and Prepayment Penalty Amounts with respect to each Loan Group made during the related Prepayment Period; (xv) the aggregate amount of Realized Losses incurred during the related Due Period and the cumulative amount of Realized Losses; (xvi) the Class Certificate Principal Balance of each Class of Certificates and the Apportioned Principal Balances of the Subordinate Certificates after giving effect to any distributions made thereon, on such Distribution Date; (xvii) the Interest Distributable Amount in respect of each Class of Certificates, for such Distribution Date and the respective portions thereof, if any, remaining unpaid following the distributions made in respect of such Certificates on such Distribution Date; (xviii) the aggregate amount of any Net Interest Shortfalls and the Unpaid Interest Shortfall Amount for such Distribution Date; (xix) the Available Funds with respect to each Loan Group; (xx) the Pass-Through Rate for each Class of Certificates for such Distribution Date; (xxi) the aggregate Principal Balance of Mortgage Loans purchased hereunder by the Seller during the related Due Period, and indicating the relevant section of the related Servicing Agreement, or the Section of this Agreement, as applicable, requiring or allowing the purchase of each such Mortgage Loan; (xxii) the amount of any Principal Deficiency Amounts or Accrued Interest Amounts paid to an Undercollateralized Group or amounts paid pursuant to Section 5.01(f)(i); (xxiii) the amount of any unpaid Basis Risk Shortfall or Unpaid Basis Risk Shortfall (if applicable) and the related accrued interest thereon, with respect to the Class 1-A Certificates; (xxiv) current Recoveries allocable to each Loan Group; and (xxv) cumulative Recoveries allocable to each Loan Group. The Securities Administrator will make the Distribution Date Statement (and, at its option, any additional files containing the same information in an alternative format) available each month to Certificateholders and the other parties to this Agreement via the Securities Administrator’s internet website. The Securities Administrator’s internet website shall initially be located at “▇▇▇.▇▇▇▇▇▇▇.▇▇▇.” Assistance in using the website can be obtained by calling the Securities Administrator’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer service desk and indicating such. The Securities Administrator shall have the right to change the way such reports are distributed in order to make such distribution more convenient and/or more accessible to the parties, and the Securities Administrator shall provide timely and adequate notification to all parties regarding any such change. In the case of information furnished pursuant to subclauses (i) and (ii) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each Class for each $1,000 original dollar amount as of the Cut-Off Date. (b) Within ten (10) Business Days a reasonable period of time after the end of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets in summary form, their location, historical costyear, the amount Securities Administrator shall, upon written request, furnish to each Person who at any time during the calendar year was a Certificateholder of depreciation and any improvements theretoa Regular Certificate, substantially if requested in the form attached hereto as Exhibit Dwriting by such Person, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordnecessary to provide to such Person a statement containing the information set forth in subclauses (i) through (iii) and (xxi) above, it being understood that Tenant may classify any asset additions in accordance with the fixed asset methodology aggregated for propco-opco separation used as such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the Commencement Date; (vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of any Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances); (viii) Such additional customary and reasonable financial information related to any Facility, Tenant, CEOC, ERI and their Affiliates which Securities Administrator shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, ERI and any of their Affiliates, respectively, or any Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder have been satisfied to the extent required by Section 31.3. Without limitation of the foregoing, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to each SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses and operating income, and other that substantially comparable information reasonably necessary and sufficient to fairly represent the financial position and results of operations of each SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (C) PACE reports, in the form attached hereto as Exhibit I; (ix) The compliance certificates, as and when required pursuant to Section 4.3; (x) The Annual Capital Budget as and when required in Section 10.5(d); (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(c); (xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at each Facility; (xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered prepared and furnished by the Securities Administrator to Landlord no later than fifty-five (55) days following the commencement of the Fiscal Year to which such operating budget relates; (xiv) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlord; (xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3; (xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise Certificateholders pursuant to any other provision requirements of this Lease;the Code as are in force from time to time. (xviii) The monthly reporting required pursuant to Section 4.1 hereof; (xix) Semi-annual property-level betting & gaming revenue information received pursuant to Section 10.2 of the MTSA by Tenant, ERI or any direct or indirect subsidiary of ERI to the extent relevant to the calculation of Net Revenues hereunder, in each case within fifteen (15) days of the receipt thereof; (xxc) On each Distribution Date, the Securities Administrator shall supply an annual electronic tape to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg Financial Markets, Inc. on a monthly basis, and shall supply an electronic tape to Loan Performance and Intex Solutions in a detailed reconciliation of the financial information being provided format acceptable to Landlord pursuant to clause (xix) above (the “WH Net Revenue”) Loan Performance and the Net Revenue statements that Tenant is providing to Landlord pursuant to clause (iv) above, which reconciliation shows how the Net Revenue contained in the WH Net Revenue is being reflected in the Net Revenue statements delivered pursuant to clause (iv) above; and (xxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord, reasonably cooperate with Landlord in providing information with respect to the Leased Property or any portion thereof, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described Intex Solutions on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies; and (B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable Landlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statementmonthly basis.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Greenwich Capital Accep Mort Loan Pass-THR Certs Ser 2004-1)