Statements. Tenant shall furnish or cause to be furnished the following to Landlord: (i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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); (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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC: (A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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); (B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017); (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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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; (xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b); (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 the 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; and (xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord: (A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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; (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, except with respect to the Existing Fee Mortgage, 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; and (C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landl
Appears in 2 contracts
Sources: Lease (CAESARS ENTERTAINMENT Corp), Lease (Vici Properties Inc.)
Statements. Tenant shall furnish or cause to be furnished the following to Landlord:
(i) As to SPE Tenant: On or before twenty-five (a) Within ninety (9025) days after the end of each Fiscal Year calendar month the following items as they pertain to Tenant: (commencing with A) an occupancy report for the Fiscal Year ending December 31subject month, 2017)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, annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year noting gross revenue, net revenue, operating expenses and containing statement of profit and loss, a balance sheetoperating income, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; other information reasonably necessary and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, sufficient to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, represent the financial position and results of operations of SPE Tenant during such calendar month, and its Subsidiaries on containing a consolidated basis in accordance with GAAP comparison of budgeted income and expenses and the actual income and expenses, and (subjectC) PACE reports, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes);form attached hereto as Exhibit I.
(ii) As to CEOCTenant:
(Aa) annual financial statements audited by CEOCTenant’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 CEOCTenant, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC Tenant and its Subsidiaries and shall provide in substance that (A) such Financial Statements present fairly the consolidated financial position of CEOC Tenant 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 Tenant 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);
(Bb) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOCTenant, together with a certificate, executed by the chief financial officer or treasurer of CEOC Tenant (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 Tenant 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); and
(Cc) 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CECGuarantor:
(Aa) annual financial statements audited by CECGuarantor’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 CECGuarantor, including the together with (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEC Guarantor and its Subsidiaries and shall provide in substance that (aA) such consolidated financial statements Financial Statements present fairly the consolidated financial position of CEC Guarantor 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 (bB) that the audit by CEC’s such Accountant in connection with such Financial Statements has been made in accordance with GAAPGAAP and (2) a certificate, executed by the chief financial officer or treasurer of Guarantor 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);
(Bb) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CECGuarantor, together with a certificate, executed by the chief financial officer or treasurer of CEC Guarantor (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 CEC Guarantor 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30March 31, 20172018);; and
(Cc) 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) below;.
(d) Notwithstanding anything to the contrary contained in this Section 23.1, CRC shall be relieved of its obligations to provide any of the reports in the foregoing clauses so long as (1) CEC (or other parent entity of CRC) reports CEC’s (or such other entity’s) audited financial statements on a consolidated basis and (2) such financial statements are accompanied by consolidating information that explains in reasonable detail the differences between the information relating to CEC (or such other parent entity), on the one hand, and the information relating to CRC and its subsidiaries on a standalone basis, on the other hand, which consolidating information shall be certified by an officer of CRC as having been fairly presented in all material respects.
(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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 the 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 the Facility, Tenant, CEOC, CEC CRC and their Affiliates which shall be limited to balance sheets and income statements statements, as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3 (and, without limitation, all information concerning Tenant, CEOC, CEC CRC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, in the form attached hereto as Exhibit I;
(ix) The compliance certificates, as and when required pursuant to Section 4.3;; and
(x) The Annual Capital Budget as and when required in Section 10.5;.
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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;; and
(xviii) The monthly reporting required pursuant to Section 4.1 hereof; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlLandlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statements with the SEC if and to the extent that Landlord, PropCo 1, PropCo or Landlord REIT is required to file such Financial Statements with the SEC pursuant to Legal Requirements or (y) include such Financial Statements in an offering document if and to the extent that Landlord, PropCo 1, PropCo or Landlord REIT is reasonably requested or required to include such Financial Statements in any offering document in connection with a financing contemplated by and to the extent required by Section 23.2(b).
Appears in 2 contracts
Sources: Lease Agreement (CAESARS ENTERTAINMENT Corp), Lease Agreement (Vici Properties Inc.)
Statements. Tenant All reasonable determinations by Landlord pursuant to this Article 6 shall furnish or cause be presumed to be furnished correct. Until Tenant is advised of the following adjustment in its obligation to Landlord:
(i) As pay Shared Expenses, if any, pursuant to SPE Tenant: (a) Within ninety (90) days after the end provisions of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017Section 6.2(d), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, monthly rental shall continue to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 paid at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and then current rent (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 including all prior adjustments thereto pursuant 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 the Facility), a . Upon written notice to Landlord regarding of not less than fifteen (15) business days, Tenant shall have the sameright to review the documentation relied upon by Landlord relating to the computation of Shared Expenses, which notice review shall include a detailed description occur at the location specified in Section 1.11(b). In computing Shared Expenses, no cost or expense may be accounted more than once, any expenses which are paid by the proceeds of insurance shall be excluded and any expenses which are separately metered or billed directly to and separately paid by any other tenant shall be excluded. Within one hundred twenty (120) days after receipt of the subject Landlord’s Statement by Tenant Event and not less than thirty (30) days’ prior written notice to Landlord and provided Tenant is not in default hereunder, Tenant shall have the right to cause an audit to be made of Default (Landlord’s computation of Shared Expenses, at the location of the Building or such facts or circumstances) and the actions Tenant has taken or shall takeother location in San Francisco County, if any, to remedy such Tenant Event of Default (or such facts or circumstances);
(viii) Such additional customary and reasonable financial information related to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case California as may be required designated by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder to the extent required by Section 31.3Landlord, at Tenant’s sole expense, not more frequently than once per calendar year. Without limitation of the foregoing, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which Such audit shall be delivered conducted by an accountant which is a member of a nationally or regionally recognized accounting firm reasonably acceptable 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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, in no event shall any such audit be conducted by a company, which as a fee, receives a percentage of any recovery. Tenant agrees that the Tenant and such accountant shall keep all information described on Exhibit M shall not be so excluded even if obtained during any such audit strictly confidential; provided, however, Tenant may disclose such information qualifies within clauses (i), (iia) or (iii) of this parenthetical), to the extent reasonably requested by necessary in any lawsuit requiring such Fee Mortgagee in order disclosure, (b) to satisfy the market standards to which such Fee Mortgagee customarily adheres its consultants, or which may be reasonably (c) as required by prospective investors and/or rating agencies;
(B) review, re-review and, to law. A copy of 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 audit report shall be limited to any portions relating solely to Tenant Information; provided that, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L regardless as to whether the audit discloses any overpayment or underpayment of Shared Expenses by Tenant. Tenant shall not be entitled to withhold or deduct any portion of Base Rent or Additional Rent during the date pendency of any such audit. Any errors disclosed by such audit shall be promptly corrected, provided that Landlord shall have the closing right to cause another independent audit to be made of such Fee Mortgage Securitizationcomputations, except (x) to and in the extent that any such representation is made as event of a specific datedisagreement between the auditors, in which case such representation is accurate and complete in all material respects as the audit disclosing the least amount of such specific datedeviation from Landlord’s original computations shall be conclusively deemed to be correct. The provisions of this Section shall be the sole method to be used by Tenant to dispute the amount of Shared Expenses payable by Tenant under this Lease, and (y) to the extent Tenant waives any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlother rights or remedies relating thereto.
Appears in 2 contracts
Sources: Office Lease (Zendesk, Inc.), Office Lease (Zendesk, Inc.)
Statements. Tenant Lessee shall furnish or cause to be furnished the following statements to LandlordLessor:
(i) As to SPE Tenant: (a) Within ninety within one hundred twenty (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60120) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE TenantLessee’s quarterly unaudited financial statements, consisting of a statement of profit and lossGuarantor’s fiscal years, a copy of the audited consolidated balance sheetsheets of Lessee, Guarantor and their respective consolidated Subsidiaries as of the end of such fiscal year, and statement related audited consolidated statements of cash flowsincome, plus a calculation of EBITDAR for such Fiscal Quarter changes in common stock and the applicable prior year Fiscal Quarter, other stockholders’ equity and changes in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position of Lessee, its consolidated Subsidiaries and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis Guarantor for such fiscal year, prepared in accordance with GAAP (subjectapplied on a basis consistently maintained throughout the period involved, in the case of quarterly such consolidated financial statements, statements to normal year-end audit adjustments and the absence of footnotes)be certified by nationally recognized certified public accountants;
(iib) As to CEOC:
within forty-five (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 (9045) days after the end of each Fiscal Year fiscal quarter (commencing with other than the Fiscal Year ending December 31last fiscal quarter during any fiscal year of the applicable Person), 2017);
(Bi) quarterly a copy of the unaudited financial consolidated balance sheets of Lessee, Guarantor and their respective consolidated Subsidiaries as of the end of such fiscal quarter, and related unaudited consolidated statements, consisting changes in common stock and other stockholders’ equity and changes in the financial position of Lessee, Guarantor and their respective consolidated Subsidiaries for such fiscal quarter, and (ii) a statement of profit income of Lessee, Guarantor and loss, a balance sheet, their respective consolidated Subsidiaries that sets forth the results for both such fiscal quarter 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 presentyear-to-date, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis cases prepared in accordance with GAAP applied on a basis consistently maintained throughout the applicable period;
(subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (xc) within sixty one hundred twenty (60120) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing Lessee’s and Guarantor’s fiscal years, and together with the Fiscal Quarter ending March 31annual audit report furnished in accordance with clause (a) above, 2018); and
(C) such additional information an Officer’s Certificate stating that to the best of the signer’s knowledge and unaudited quarterly financial information concerning belief after making due inquiry, Lessee is not in default in the Leased Property and Tenant, which information shall be limited to balance sheets, income statements, and statements performance or observance of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing filings with or reports to (i) of 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 terms of this Lease, (ii) or if Lessee shall be in default, specifying all such defaults, the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within nature thereof, and the meaning of Section 856(a) of steps being taken to remedy the Code)) 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) belowsame;
(iiid) As to CEC:
within forty-five (A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (9045) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) from (or to) any Gaming Authorities);
(vi) Within ten (10) Business Days after the end of each calendar month, Facility level statements of income and detailed operational statistics regarding occupancy rates, patient and resident mix and patient and resident rates by type for each Facility for each such calendar month;
(e) upon request by Lessor (but not more frequently than once each fiscal year of Lessee), a schedule containing any additions copy of each cost report filed with the appropriate governmental agency for each Facility (provided, however, with respect to or retirements each request therefor, if Lessee’s reasonable costs and expenses incurred in assembling and delivering copies of any fixed assets constituting Leased Propertysuch cost reports shall exceed One Thousand Five Hundred Dollars ($1,500) for the applicable request, describing such assets in summary form, their location, historical cost, Lessor shall reimburse Lessee for the amount of depreciation such reasonable costs and expenses actually incurred by Lessee in complying with such request);
(f) promptly upon Lessee’s receipt thereof, copies of all material written communications received by Lessee from any improvements theretoregulatory agency relating to any proceeding, substantially in the form attached hereto as Exhibit Dformal or informal, and such additional customary and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested by Landlordcited deficiencies with respect to services and activities provided and performed at each Facility, it being understood that Tenant may classify including patient and resident care, patient and resident activities, patient and resident therapy, dietary, medical records, drugs and medicines, supplies, housekeeping and maintenance, or the condition of each Facility, and involving an actual or threatened warning, imposition of a material fine or a penalty, or suspension, termination or revocation of any asset additions in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement DateRequired Governmental Approval;
(viig) Within three (3) Business Days promptly upon Lessee’s receipt thereof, copies of obtaining actual knowledge all claims, reports, complaints, notices, warnings or asserted violations relating in any way to the Leased Property or any Capital Additions or Lessee’s use thereof, the subject matter 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 if adversely determined, would be reasonably expected likely to result in have a material adverse effect on Tenant or the continued operation, in respect accordance with the terms of this Lease, of the 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 circumstancessubject Facility(ies);
(viiih) Such additional customary with reasonable promptness, such other information respecting (i) the financial and reasonable financial information related to the operational condition and affairs of Lessee, any Guarantor and each Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC ii) the physical condition of the Leased Property and any of their AffiliatesCapital Additions and (iii) any suspected Transfer, respectively, including the then equity or the Facility voting ownership in Lessee or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunderin any Controlling Person(s), in each case as Lessor 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reportsrequest, in the form attached hereto as Exhibit I;
(ix) The compliance certificatesof a questionnaire or otherwise, as and when required pursuant from time to Section 4.3;
(x) The Annual Capital Budget as and when required in Section 10.5;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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 hereoftime; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, Tenant or its Affiliates (excluding (i) any material non-public informationreasonably promptly following Lessor’s request therefor, copies of all Required Governmental Approvals for each such Facility (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M Lessee shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii) of this parenthetical), have no obligation 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;
(B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions separately deliver copies 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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) Required Governmental Approvals to the extent that any such representation is made as of Lessor then has access to a specific date, in which case such representation is accurate and complete in all material respects as web-based system maintained by Lessee that contains copies of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”Required Governmental Approvals). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landl.
Appears in 2 contracts
Sources: Master Lease and Security Agreement (Emeritus Corp\wa\), Master Lease and Security Agreement (Hcp, Inc.)
Statements. Tenant shall furnish or cause to be furnished the following statements to Landlord:
(i) As to SPE Tenant: Within sixty-five (a) Within ninety (9065) days after the end of each Tenant Parent’s Fiscal Year Years (commencing with the Fiscal Year ending [December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b201 ]) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing or concurrently with the Fiscal Quarter ending March 31, 2018), SPE filing by Tenant’s quarterly unaudited financial statementsParent of its annual report on Form 10-K with the SEC, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE whichever is earlier: (x) Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP ’s Parent’s Financial Statements; (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 (2y) a certificate, executed by the chief financial officer or treasurer of CEOC the Tenant’s Parent (a) certifying that no Tenant Event of Default default has occurred under this Master Lease or, if such a Tenant Event of Default default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all thereto and (b) setting forth the calculation of which shall be provided within ninety (90) days after the end financial covenants set forth in Section 23.3 hereof in reasonable detail as of each such Fiscal Year (commencing with the Fiscal Year ending [December 31, 2017201 ]);
; and (Bz) 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 report with respect thereto, and (B) certifying that such to Tenant’s Parent’s 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); and
(C) such additional information and unaudited quarterly financial information concerning the Leased Property and from Tenant’s Parent’s accountants, 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to going concern and scope of audit of CEC Tenant’s Parent and its Subsidiaries (excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date of such audit or any projected financial performance or covenant default in any Material Indebtedness or this Master Lease in such twelve month period) and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC Tenant’s Parent 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 examination by CECTenant’s Accountant Parent’s accountants in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety generally accepted auditing standards;
(90ii) Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of the Tenant’s Parent’s Fiscal Year (commencing with the Fiscal Year fiscal quarter ending December 31[ , 2017);
(B201 ]) or concurrently with the filing by Tenant’s Parent of its quarterly unaudited financial statementsreport on Form 10-Q with the SEC, consisting of a statement of profit and losswhichever is earlier, a balance sheet, and statement copy of cash flows Tenant’s Parent’s Financial Statements for CECsuch period, together with a certificate, executed by the chief financial officer or treasurer of CEC Tenant’s Parent (i) certifying that no default has occurred or, if such a default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth the calculation of the financial covenants set forth in Section 23.3 hereof in reasonable detail as of such quarter, to the extent one complete Test Period has been completed which has commenced following the date of this Master Lease and (iii) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC Tenant’s Parent 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(Ciii) Promptly following Landlord’s request from time to time, (a) five-year forecasts of Tenant’s income statement and balance sheet covering such quarterly and annual periods as may be reasonably requested by Landlord, and in a format consistent with Tenant Parent’s quarterly and annual financial statements filed with the SEC, and such additional financial information and projections as may be reasonably requested by Landlord in connection with syndications, private placements, or public offerings of GLP’s or Landlord’s debt securities or loans or equity or hybrid securities and (b) 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, Tenant as Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP may require for any its ongoing filings with or reports to (i) the SEC under both the Securities Act and the Securities Exchange ActAct of 1934, as amended, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP during the Term of this Master Lease, (ii) the Internal Revenue Service (including in respect of Landlord REITGLP’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo GLP or Landlord REIT its Subsidiaries subject to Section 23.1(c) below);
(iv) As soon as it is prepared and in no event later than sixty Within thirty-five (6035) days after the end of each Fiscal Yearcalendar month, a copy of Tenant’s income statement for such month and Tenant’s balance sheet as of Net Revenue the end of such month (which may be subject to quarterly and year-end adjustments and the absence of footnotes); provided, however, that with respect to each calendar quarter, Tenant shall provide such financial reports for the Facility with respect to final month thereof as soon as is reasonably practicable following the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect closing of the periodic determination of books for such month and in sufficient time so that Landlord or its Affiliate is able to include the Variable Rent hereunderoperational results for the entire quarter in its current Form 10-Q or Form 10-K (or supplemental report filed in connection therewith);
(v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity 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 the 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 (or Manager) from (or to) any Gaming Authorities)Property;
(vi) Within ten As soon as it is prepared and in no event later than sixty (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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (2560) days after the end of each calendar month the following items as they pertain to SPE Tenant: (A) Fiscal Year, a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room and entertainment operating metrics for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses capital and operating income (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant Facility for each that Fiscal Year, which shall ; and
(vii) Tenant further agrees to provide the financial and operational reports to be delivered to Landlord no later than fifty-five (55under this Master Lease in such electronic format(s) 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 reasonably be reasonably possible), such further detailed information reasonably available required by Landlord from time to Tenant with respect time in order 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, facilitate Landlord’s internal financial 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact reporting database and (ii) certifying as permit Landlord to the accuracy of the representations made by calculate any rent, fee or other payments due under Ground Leases. Tenant also agrees that Landlord shall have audit rights with respect to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) information to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) required to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection confirm Tenant’s compliance with the Existing Fee MortgageMaster Lease terms (including, Tenant shall (I) be responsible for the costs without limitation, calculation of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 thereunderNet Revenues), 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 Landl.
Appears in 2 contracts
Sources: Merger Agreement (PNK Entertainment, Inc.), Merger Agreement (Pinnacle Entertainment Inc.)
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 SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Available Funds and the applicable prior year Fiscal Quarter, in Certificate Rate for each case, to Class for the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 such Distribution Date and a statement setting forth the Facility), a written notice 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which 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; and
(xix) In connection with any Fee Mortgagee SecuritizationAgreement, Tenant shallsuch periodic, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except special or other reports or information, whether or not provided for herein, as shall be necessary, reasonable or appropriate with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information Certificateholder or otherwise with respect to the Propertypurposes 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;
(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, purpose except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information as set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlthis 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 shall furnish or cause to be furnished the following statements to Landlord:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 flowshall, 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 available and in no any event later than sixty within one hundred twenty (60120) days after the end of each Fiscal Year, a statement of Net Revenue with respect to the Facility with respect to the prior Lease 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 provide to Landlord annual audited financial statements of any actionGuarantors and Tenant for such Fiscal Year, proposal or investigation by any agency or entity, or complaint to such agency or entity (any including therein the balance sheets of which is called a “Proceeding”), known to Tenant, the result Guarantors and Tenant 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 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 the 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 (or Manager) 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 such Fiscal Year and statements of any fixed assets constituting Leased Property, describing earnings and statements of cash flow of Guarantors and Tenant for 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder)Fiscal Year, in each case as may be required certified in a manner acceptable to Landlord by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder independent certified public accountants of recognized national standing selected by Tenant and reasonably acceptable to Landlord (the extent required by Section 31.3. Without limitation form of the foregoing, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause such certification to be furnishedreasonably satisfactory to Landlord), to Landlord prepared in accordance with GAAP, except as otherwise noted therein, on or before twentya basis consistent with prior periods and fairly presenting the financial condition of Guarantors and Tenant at the end of such Fiscal Year and the immediately preceding Fiscal Year and in comparative columnar form.
(b) Tenant shall, as soon as available and in any event within forty-five (2545) days after the end of each calendar month Quarter, provide to Landlord quarterly financial statements of the following items as they pertain to SPE Tenant: (A) a rent roll Tenant for the subject month, an occupancy report for the subject monthsuch Quarter, including an average daily rate therein the balance sheets of Guarantors and revenue per available room Tenant as of the end of such Quarter, and entertainment operating metrics statements of earnings and statements of cash flow of Guarantor and Tenant for such Quarter, in each case certified in a manner acceptable to Landlord by such entity’s chief accounting officer as being prepared in accordance with GAAP, except as otherwise noted therein, and that such quarterly financial statements fairly present to financial condition of each of Guarantors and Tenant as of the subject month; (B) monthly end of such Quarter and year-to-date operating date.
(c) within thirty (30) days after the end of each month of each Fiscal Year (including the twelfth month of each Fiscal Year), a “balance sheet” and statements of revenues and expenses for the Premises, all prepared for each calendar monthby Tenant’s management in accordance with GAAP, noting gross revenuebut without footnotes, net revenueexcept as otherwise noted therein, operating expenses on a basis consistent with prior periods, and operating income fairly presenting the financial condition of the Premises’ operation; without limiting the foregoing, such statements shall include a table of Occupants by payor source and shall include such other information as may reasonably be requested by Landlord.
(not including any contributions d) with the statements submitted pursuant to subsections (a) and (b) of this Section, a certificate signed on behalf of Tenant by the principal financial or accounting officer of Tenant to the FF&E Reserve)effect that no Event of Default specified herein nor any event which, upon n any accident, injury to or death of Persons or loss of or damage to property occurring on or about the Premises or adjoining sidewalks thereto notice or with the passage of time or both, would constitute such an Event of Default has occurred and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar monthis continuing, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reportsor, in each case, if any such Event of Default or event has occurred and is continuing, specifying the form attached hereto as Exhibit Inature and extent thereof;
(ixe) The compliance certificatessemi-annually, as and when required pursuant to Section 4.3;
(x) The Annual Capital Budget as and when required in Section 10.5;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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 reports 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 Hospitals’ inpatient/outpatient volume statistics and list 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 hereofmedical staff; and
(xixf) In connection with any Fee Mortgagee Securitizationpromptly, Tenant shallfrom time to time, upon such other information regarding the written request of Landlord:
(A) at the sole cost operations, business affairs and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense financial condition of Tenant as provided in the final sentence of this clause (xix))Landlord may reasonably request, reasonably cooperate with Landlord in providing information with respect to the Propertyincluding, Tenant or its Affiliates (excluding (i) any material non-public informationwithout limitation, (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;
(B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions prompt notice of any Disclosure Document (Event of Default or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenantevent which, which portions shall be limited to any portions relating solely to Tenant Information; provided thatwith the passage of time or the giving of notice, except with respect to the Existing Fee Mortgageor both, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions would constitute an Event of Default and prompt notice of any Disclosure Document approved action, suit or proceeding at law or in equity or by Tenant pursuant to the above clause (B) does not at the time furnished contain or before any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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)governmental instrumentality or other agency which, if and to adversely determined, would materially adversely affect Tenant’s or the extent such compliance with federal securities lawsPremises’ business, including Regulation S-X (and for any prior periods required thereunder)operations, is required to enable Landlproperties, assets or condition, financial or otherwise.
Appears in 2 contracts
Sources: Lease (Global Medical REIT Inc.), Purchase Agreement (Global Medical REIT Inc.)
Statements. Tenant shall furnish or cause to be furnished the following to Landlord:
(i) As to 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 statement of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three 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, SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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 CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 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;
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landla
Appears in 2 contracts
Sources: Lease Amendment (Vici Properties Inc.), Lease Amendment (CAESARS ENTERTAINMENT Corp)
Statements. Tenant shall furnish or cause to be furnished the following statements to Landlord:
(i) As to SPE Tenant: Within sixty-five (a) Within ninety (9065) days after the end of each Tenant Parent’s Fiscal Year or within five (5) Business Days following the filing by Tenant’s Parent of its annual report on Form 10-K with the SEC with respect to such Fiscal Year (commencing with the first full Fiscal Year ending December 31, 2017after the Commencement Date), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and whichever is later: (bx) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 CEOCParent’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 Tenant’s Financial Statements; (B) that the audit by such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2y) a certificate, executed by the chief financial an 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 Tenant’s Parent (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017);
(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 (Aa) certifying that no Tenant Event of Default default has occurred under this Master Lease or, if such a Tenant Event of Default default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (Bb) certifying that such Financial Statements fairly present, in all material respects, setting forth the calculation of the financial position and results covenants set forth in Section 23.3 hereof in reasonable detail 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 of the first three Fiscal Quarters of each such Fiscal Year (commencing with the first full Fiscal Quarter Year ending March 31, 2018after the Commencement Date); and
and (Cz) such additional information and unaudited quarterly financial information concerning the Leased Property and a report with respect to Tenant’s Parent’s Financial Statements from Tenant’s Parent’s accountants, 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to going concern and scope of audit of CEC Tenant’s Parent and its Subsidiaries (excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date of such audit or any projected financial performance or covenant default in any Material Indebtedness or this Master Lease in such twelve month period) and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC Tenant’s Parent 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 examination by CECTenant’s Accountant Parent’s accountants in connection with such Tenant’s Parent’s Financial Statements has been made in accordance with GAAPgenerally accepted auditing standards; provided, which however, it is understood that with respect to Tenant’s Financial Statements, such Financial Statements will not be audited, however, the officer’s certificate provided under subclause (y) above shall be provided within ninety further certify that the financial position and results of operations of Tenant and its Subsidiaries are reflected in the Tenant Financial Statements and roll up into the Financial Statements of Tenant’s Parent on a consolidated basis in accordance with GAAP (90subject to normal year-end audit adjustments);
(ii) Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of Tenant’s Parent’s Fiscal Year or within five (5) Business Days following the filing by Tenant’s Parent of its quarterly report on Form 10-Q with the SEC with respect to such fiscal quarter (commencing with the Fiscal Year first full fiscal quarter ending December 31after the Commencement Date for which a filing of Form 10-Q with the SEC is required), 2017);
(B) quarterly unaudited financial statements, consisting of a statement of profit and losswhichever is later, a balance sheet, copy of Tenant’s Parent and statement of cash flows Tenant’s Financial Statements for CECsuch period, together with a certificate, executed by an officer of Tenant’s Parent (i) certifying that no default has occurred under this Master Lease or, if such a default has occurred, specifying the chief nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth the calculation of the financial officer or treasurer covenants set forth in Section 23.3 hereof in reasonable detail as of CEC such quarter, to the extent one complete Test Period has been completed following the Commencement Date and (iii) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC Tenant’s Parent, Tenant and its their respective 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017adjustments);
(Ciii) Promptly following Landlord’s request from time to time, (a) such additional financial information and projections as may be reasonably requested by Landlord concerning Tenant, its Subsidiaries and the Guarantors in connection with syndications, private placements, or public offerings of GLP’s or Landlord’s debt securities or loans or equity or hybrid securities and (b) 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, Tenant as Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP may require for any its ongoing filings with or reports to (i) the SEC under both the Securities Act and the Securities Exchange ActAct of 1934, as amended, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP during the Term of this Master Lease, (ii) the Internal Revenue Service (including in with respect of Landlord REITto GLP’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency (with respect to GLP’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) with jurisdiction over Landlord, PropCo 1, PropCo GLP or Landlord REIT its Subsidiaries subject to Section 23.1(c) below); provided that any such information or projections shall be delivered to Landlord subject to the provisions of Section 23.2 below;
(iv) As soon as it is prepared and in no event later than sixty Within thirty-five (6035) days after the end of each Fiscal Yearcalendar month, quarter and fiscal year, a copy of Tenant’s income statement for such month, quarter or fiscal year, as applicable, and Tenant’s balance sheet as of Net Revenue the end of such month, quarter and fiscal year, as applicable (each of which may be subject to quarterly and year-end adjustments and the absence of footnotes); provided, however, that with respect to each calendar quarter, Tenant shall provide such financial reports for the Facility with respect to final month thereof as soon as is reasonably practicable following the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect closing of the periodic determination of books for such month and in sufficient time so that Landlord or its Affiliates is able to include the Variable Rent hereunderoperational results for the entire quarter in its current Form 10-Q or Form 10-K (or supplemental report filed in connection therewith);
(v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity 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 the 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 (or Manager) from (or to) any Gaming Authorities)Property;
(vi) Within ten As soon as it is prepared and in no event later than sixty (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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (2560) days after the end of each calendar month the following items as they pertain to SPE Tenant: (A) Fiscal Year, a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate capital and revenue per available room and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating EBITDA budget for each SPE Tenant Facility for each that Fiscal Year, which shall ; and
(vii) Tenant further agrees to provide the financial and operational reports to be delivered to Landlord no later than fifty-five (55under this Master Lease in such electronic format(s) 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 reasonably be reasonably possible), such further detailed information reasonably available required by Landlord from time to Tenant with respect time in order 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, facilitate Landlord’s internal financial 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact reporting database and (ii) certifying as permit Landlord to the accuracy of the representations made by calculate any rent, fee or other payments due under Ground Leases. Tenant also agrees that Landlord shall have audit rights with respect to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) information to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) required to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlordconfirm Tenant’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities lawsthis Master Lease terms (including, including Regulation S-X (and for any prior periods required thereunderwithout limitation, calculation of Net Revenues), 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 Landl.
Appears in 2 contracts
Sources: Master Lease (Boyd Gaming Corp), Master Lease (Gaming & Leisure Properties, Inc.)
Statements. Tenant shall furnish or cause to be furnished the following statements to Landlord:
(i) As (I) In the event that Tenant’s Parent is a reporting company under the Exchange Act, on the earlier of five (5) Business Days following (x) each date specified in the Exchange Act and the SEC’s related rules and regulations (including any additional time permitted under Rule 12b-25 or any successor provision thereof) that the Tenant’s Parent is required to SPE file SEC Reports (each a “SEC Filing Deadline”) and (y) the date the Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing ’s Parent files its SEC Reports with the Fiscal Year ending December 31, 2017), annual financial statements audited by an Accountant SEC or (II) in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE event that Tenant’s quarterly unaudited financial statementsParent is not a reporting company under the Exchange Act, consisting of a statement of profit and lossno later than five (5) Business Days prior to Landlord REIT’s applicable SEC requirements, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each caseif any, to the extent required as an Additional Fee Mortgagee Requirementfile, together with a certificateor include in any of Landlord REIT’s SEC Reports, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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:
Parent’s Financial Statements: (A) annual financial statements audited by CEOCTenant’s Accountant Parent’s Financial Statements required to be included in accordance with GAAP covering such Fiscal Year and SEC Report or the SEC Report 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 Statements; (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 a Responsible Officer of the chief financial officer Tenant or treasurer of CEOC Tenant’s Parent certifying that no Tenant Event of Default default has occurred under this Master Lease or, if such a Tenant Event of Default default has occurred, specifying the nature and extent thereof status of such default; and any corrective action taken or proposed to be taken (C) (1) with respect theretoto annual Financial Statements, all a report with respect to Tenant’s Parent’s Financial Statements from Tenant’s Parent’s independent registered public accounting firm, which report shall not be subject to any qualification or exception expressing substantial doubt about the ability of which shall be provided within ninety the Tenant’s Parent and its subsidiaries to continue as a “going concern” or any exception as to the scope of such audit (90excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date such report is delivered or any projected financial performance or covenant default in any Indebtedness or this Master Lease in such twelve month period) days after the end of each Fiscal Year (commencing and that such Financial Statements have been prepared in accordance with GAAP and Tenant’s Parent’s accountants have examined such Financial Statements in accordance with the Fiscal Year ending December 31standards of the PCAOB (or generally accepted auditing standards, 2017);
if not required to file SEC Reports at such time) and (B2) with respect to quarterly unaudited financial statementsFinancial 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 a Responsible Officer of the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred orTenant’s Parent, 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 Tenant’s Parent and its Subsidiaries on a consolidated basis in accordance with GAAP as at such date and for such period (subject to normal year-end audit adjustments and adjustments, the absence of footnotesfootnotes and other informational disclosures customarily omitted from interim financial statements), all of which . Financial statements required to be delivered pursuant to this Section 23.1(b)(i) will be deemed delivered to the extent such documents are included in materials filed with the SEC and shall be provided deemed to have been delivered on the date such documents are publicly available on the SEC’s website;
(xii) within sixty Within seventy-five (6075) days after the end of each of the first three Tenant’s Fiscal Quarters of each Fiscal Year Years (commencing with the Fiscal Quarter Year ending March December 31, 20182022); and, (a) a budget and projection by fiscal month for the Fiscal Year in which the budget is delivered, including projected Net Revenue and EBITDAR with respect to each Facility, (b) a budget and projection by fiscal year for the second and third subsequent Fiscal Years, including projected Net Revenue and EBITDAR with respect to each Facility, and (c) a capital budget for each Facility for the Fiscal Year in which the budget is delivered and for the following Fiscal Year;
(Ciii) Within thirty (30) days after the end of each calendar month, the following items as they pertain to each Facility: occupancy percentages, including average daily rate and revenue per available room for the subject month, the monthly and year-to-date operating statements prepared for each calendar period, noting 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 Facility and its respective Operating Subtenant during such calendar period;
(iv) Within sixty (60) days after the expiration of any calendar quarter, Tenant shall deliver to Landlord a Financial Covenant compliance report, which report shall include an Officer’s Certificate in substantially the form attached hereto as Exhibit H, certifying that the Financial Covenant is in compliance under Section 23.3 together with reasonable detail evidencing such compliance;
(v) (a) commercially reasonable efforts to deliver such additional financial information and projections as may be reasonably requested by Landlord, so long as any reasonable out-of-pocket cost of Tenant or its Related Persons is borne by Landlord, in connection with syndications, private placements or public offerings by Landlord of debt securities or loans or equity or hybrid securities and (b) such additional information information, Tenant’s Parent Financial Statements if not otherwise provided pursuant to Section 23.1(b)(i), and unaudited quarterly financial information concerning the Leased Property Property, Tenant, and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, ’s Parent as Landlord, PropCo 1, PropCo Landlord or Landlord REIT its Affiliates may require for any ongoing their 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 SEC Reports and registration statements to be filed by Landlord, PropCo 1, PropCo Landlord or Landlord REIT its Affiliates during the Term of this Master Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo Landlord or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowits Subsidiaries;
(iii) As to CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder);
(vvi) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity 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 materially 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 material 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 the 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 (or Manager) 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 whichUpon request, 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause not 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 SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue made more than once per available room and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(xii) Together with the monthly reporting required pursuant to the preceding clause (xi)fiscal quarter, an updated rent roll and a summary of all leasing activity then taking place at the for each Facility;; and
(xiiiviii) Operating budget for each SPE Tenant for each Fiscal Year, which shall further agrees to provide the financial and operational reports to be delivered to Landlord no later than fifty-five (55under this Master Lease in such electronic format(s) 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 reasonably be reasonably possible), such further detailed information reasonably available required by Landlord from time to Tenant with respect time in order 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, Tenant or its Affiliates (excluding (i) any material non-public informationfacilitate Landlord’s internal financial and reporting database, (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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as permit Landlord to the accuracy of the representations made by Tenant calculate any rent, fee or other payments due under Ground Leases. ▇▇▇▇▇▇ also agrees that Landlord shall have audit rights with respect to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) information to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) required to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection confirm Tenant’s compliance with the Existing Fee Mortgageterms of this Master Lease (including, Tenant shall (I) be responsible for the costs without limitation, calculation of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 thereunderNet Revenues), 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 Landl.
Appears in 2 contracts
Sources: Master Lease (VICI Properties L.P.), Master Lease (MGM Resorts International)
Statements. Tenant shall furnish or cause to be furnished the following to Landlord:
(i) As to SPE Tenant: On or before twenty-five (a) Within ninety (9025) days after the end of each Fiscal Year calendar month the following items as they pertain to Tenant: (commencing with A) an occupancy report for the Fiscal Year ending December 31subject month, 2017), annual financial statements audited by including an Accountant in accordance with GAAP covering such Fiscal Year average daily rate and containing statement of profit and loss, a balance sheetrevenue per available room for the subject month, and statement of cash flows (B) monthly and year-to-date operating statements prepared for SPE Tenanteach calendar month, plus a calculation of EBITDAR for such Fiscal Year; noting gross revenue, net revenue, operating expenses and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheetoperating income, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter other information reasonably necessary and the applicable prior year Fiscal Quarter, in each case, sufficient to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, represent the financial position and results of operations of SPE Tenant during such calendar month, and its Subsidiaries on containing a consolidated basis in accordance with GAAP (subject, in the case comparison of quarterly financial statements, to normal year-end audit adjustments budgeted income and expenses and the absence of footnotes);actual income and expenses.
(ii) As to CEOC:
(Aa) 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;
(Bb) 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
(Cc) 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)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 CECERI:
(Aa) annual financial statements audited by CECERI’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 CECERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CECERI’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;
(Bb) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CECERI, together with a certificate, executed by the chief financial officer or treasurer of CEC ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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
(Cc) 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 the 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 the Facility, Tenant, CEOC, CEC ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC ERI and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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;; and
(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; and
(xixxx) In connection with any Fee Mortgagee SecuritizationOn an annual basis, Tenant shall, upon a detailed reconciliation of the written request of Landlord:
(A) at the sole cost and expense of financial information being provided to Landlord (except with respect pursuant to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with ) above (the “WH Net Revenue”) and the Net Revenue statements that Tenant is providing to Landlord in providing information with respect pursuant to the Property, Tenant or its Affiliates clause (excluding (iiv) 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;
(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 Tenantabove, which portions shall be limited to any portions relating solely to Tenant Information; provided that, except with respect to reconciliation shows how the Existing Fee Mortgage, 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; and
(C) with respect to Net Revenue contained in the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that WH Net Revenue is being reflected in the information set forth in such portions of any Disclosure Document approved by Tenant Net Revenue statements delivered pursuant to the above clause (Biv) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request thereforabove. 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 LandlLandlord, PropCo 1, PropCo or Landlord REIT to (x) file such Financial Statements with the SEC if and to the extent that Landlord, PropCo 1, PropCo or Landlord REIT is required to file such Financial Statements with the SEC pursuant to Legal Requirements or (y) include such Financial Statements in an offering document if and to the extent that Landlord, PropCo 1, PropCo or Landlord REIT is reasonably requested or required to include such Financial Statements in any offering document in connection with a financing contemplated by and to the extent required by Section 23.2(b).
Appears in 2 contracts
Sources: Lease Amendment (Caesars Entertainment, Inc.), Lease (Vici Properties Inc.)
Statements. Tenant Lessee shall furnish or cause to be furnished the following statements to LandlordLessor:
(i) As to SPE Tenant: (a) Within ninety within 120 days after the end of each of Lessee’s and Guarantor’s fiscal years, a copy of the audited consolidated balance sheets of Lessee, Guarantor and their respective consolidated Subsidiaries as of the end of such fiscal year, and related audited consolidated statements of income, changes in common stock and other stockholders’ equity and changes in the financial position of Lessee, its consolidated Subsidiaries and Guarantor for such fiscal year, prepared in accordance with GAAP applied on a basis consistently maintained throughout the period involved, such consolidated financial statements to be certified by nationally recognized certified public accountants;
(90b) within forty-five (45) days after the end of each Fiscal Year fiscal quarter (commencing with other than the Fiscal Year ending December 31, 2017last fiscal quarter during any fiscal year of the applicable Person), annual (i) a copy of the unaudited consolidated balance sheets of Lessee, Guarantor and their respective consolidated Subsidiaries as of the end of such fiscal quarter, and related unaudited consolidated statements, changes in common stock and other stockholders’ equity and changes in the financial statements audited by an Accountant position of Lessee, Guarantor and their respective consolidated Subsidiaries for such fiscal quarter, and (ii) a statement of income of Lessee, Guarantor and their respective consolidated Subsidiaries that sets forth the results for both such fiscal quarter and year-to-date, in all cases prepared in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, applied on a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and basis consistently maintained throughout the applicable period;
(bc) within sixty (60) 120 days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing Lessee’s and Guarantor’s fiscal years, and together with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis annual audit report furnished in accordance with GAAP clause (subjecta) above, an Officer’s Certificate stating that to the best of the signer’s knowledge and belief after making due inquiry, Lessee is not in default in the case performance or observance 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 terms of this Lease, (ii) or if Lessee shall be in default, specifying all such defaults, the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within nature thereof, and the meaning of Section 856(a) of steps being taken to remedy the Code)) 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) belowsame;
(iiid) As to CEC:
within forty-five (A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety (9045) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 Facility level statements of any fixed assets constituting Leased Propertyincome and detailed operational statistics regarding occupancy rates, describing such assets in summary form, their location, historical cost, the amount of depreciation patient and any improvements thereto, substantially in the form attached hereto as Exhibit D, resident mix and such additional customary patient and reasonable financial information with respect to such fixed assets constituting Leased Property as is reasonably requested resident rates 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics for the subject month; (B) monthly and year-to-date operating statements prepared type for each calendar month, noting gross revenue, net revenue, operating expenses and operating income (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during Facility for each such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landl
Appears in 2 contracts
Sources: Master Lease and Security Agreement (Hcp, Inc.), Master Lease and Security Agreement (Hcp, Inc.)
Statements. Tenant shall furnish or cause to be furnished the following statements (each a “Financial Statement” and collectively the “Financial Statements”) to Landlord:
(i) As to SPE Tenant: (a) Within as soon as available and in no event later than ninety (90) days after the end of each Fiscal Year Year, its audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all reported on by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing (commencing with without any qualification or exception as to the Fiscal Year ending December 31, 2017), annual scope of such audit) to the effect that such consolidated financial statements audited by an Accountant present fairly in all material respects the financial condition and results of operations of Tenant and its consolidated Subsidiaries in accordance with GAAP covering such Fiscal Year and containing statement the applicable requirements of profit Regulation S-X;
(ii) as soon as available and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and in no event later than forty-five (b) within sixty (6045) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with Year, its consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting end of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year then elapsed portion of the Fiscal QuarterYear, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in each casethe case of the balance sheet, to as of the extent required end of) the previous Fiscal Year, all certified by a Financial Officer of Tenant as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements presenting fairly present, in all material respects, respects the financial position condition and results of operations of SPE Tenant and its consolidated 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 certificatethe applicable requirements of Regulation S-X, 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);
(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);
(iii) concurrently with any delivery of financial statements under clause (i) or (ii) above, all a certificate of which shall a Financial Officer of Tenant certifying as to whether a default has occurred under this Master Lease and, if a default has occurred, specifying the details thereof and any action taken or proposed to be provided taken with respect thereto; and
(xiv) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 beginning of each Fiscal Year, a statement of Net Revenue with respect to the Facility with respect to the prior Lease detailed consolidated budget for such Fiscal Year (subject to the additional requirements including a projected consolidated balance sheet and related statements of projected operations and cash flows as provided in Section 3.2 hereof in respect of the periodic determination end of and for such Fiscal Year and setting forth the Variable Rent hereunder)assumptions used in preparing such budget) and, promptly when available, any significant revisions of such budget approved by the board of directors of Tenant;
(v) Prompt promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Tenant or any of its Subsidiaries with the SEC or with any national securities exchange, or distributed by Tenant to its shareholders generally, as the case may be; and
(vi) prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity 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 the 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 (or Manager) 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landl.
Appears in 2 contracts
Sources: Master Lease (Windstream Services, LLC), Master Lease (Communications Sales & Leasing, Inc.)
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 U, V and W hereto necessary to permit the Master Servicer to perform its obligations hereunder and the Securities Administrator to calculate the information required 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.
(b) 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 SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Available Funds and the applicable prior year Fiscal Quarter, in Pass-Through Rate for each case, to Class for the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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, distribution set forth in paragraph (ii) the Internal Revenue Service (including above in respect of Landlord REIT’s qualification as a “real estate investment trust” (within interest, the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall and the amount of the Code)) 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) belowClass Interest Carryover Shortfall remaining;
(iv) As soon as it is prepared and the amount of the distribution set forth in no event later than sixty paragraph (60ii) days after the end of each Fiscal Year, a statement of Net Revenue with respect to the Facility with respect to the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof above in respect of principal and the periodic determination amount thereof in respect of the Variable Rent hereunder)Allocated Realized Loss Amount, and any remaining Allocated Realized Loss Amount;
(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 the 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 (or Manager) from (or to) any Gaming Authorities)Excess Interest distributed as principal;
(vi) the aggregate amount of the Servicing Fee and the Master Servicing Fee for such Distribution Date;
(vii) the Pool Balance and the aggregate Principal Balance 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 Certificate Principal Balance of each Class of Certificates after giving effect to distributions allocated to principal;
(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 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;
(xvii) the amount of all payments or reimbursements to the Servicer pursuant to Sections 3.03(ii) and (vi) (as reported by the Servicer);
(xviii) the number of Mortgage Loans outstanding at the beginning and at the end of the related Due Period;
(xix) 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;
(xx) 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 the avoidance of doubt, delinquencies in this clause (xx) are measured in accordance with the OTS method);
(xxi) 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)
(xxii) the amount of Basis Risk Shortfall Amount distributed to the Offered Certificates and the amount of Basis Risk Shortfall Amount remaining for each Class;
(xxiii) the amount of any Net Swap Payments or Swap Termination Payments;
(xxiv) whether a Stepdown Date or Trigger Event is in effect on such Distribution Date; and
(xxv) the applicable Record Dates, Interest Periods and determination dates for calculating payments for such Distribution Date.
(c) 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.
(d) The Securities Administrator will make the Remittance Report and a loan-level data file with mortgage elements as mutually agreed upon by the Securities Administrator and the recepients (and, at the Securities Administrator’s 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 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). For all purposes of this Agreement, with respect to any Mortgage Loan, delinquencies shall be determined by the Securities Administrator from information provided by the Servicer and reported by the Securities 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 (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.
(e) 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.
(viif) 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 such Distribution Date and a statement setting forth the Facility), a written notice 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.
(viiig) Such additional customary and Within a reasonable financial information related to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 Securities Administrator 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 they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which 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.
(h) 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; and
(xix) In connection with any Fee Mortgagee Securitizationprepare such report and in a format acceptable to the Securities Administrator, Tenant shallwhether or not provided for herein, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except as shall be necessary, reasonable or appropriate with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information Certificateholder or otherwise with respect to the Propertypurposes 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 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.
(i) 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;law or to the Rating Agencies. No Person entitled to receive copies of such reports or diskettes or files or lists of Certificateholders shall use the information therein for the purpose of soliciting the customers of the Seller or for any other purpose except as set forth in this Agreement.
(Bj) reviewFor each Distribution Date, re-review andthrough and including the Distribution Date in December 2007, the Securities Administrator shall calculate the Significance Percentage of the Interest Rate Swap Agreement. If on any such Distribution Date, the Significance Percentage is equal to or greater than 9%, the Securities Administrator shall promptly notify the Depositor and the Depositor, on behalf of the Securities Administrator, shall obtain the financial information required to be delivered by the Swap Provider pursuant to the extent accurateterms of the Interest Rate Swap Agreement. If, approve (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 Securities Administrator shall promptly notify the Depositor and the Depositor shall, within 5 Business Days of such Distribution Date, deliver to the extent inaccurateSecurities Administrator the financial information provided to it by the Swap Provider for inclusion in the Form 10-D relating to such Distribution Date. With respect to any Distribution Date, identify for purposes of determining the same with particularitynumerator of the fraction that constitutes the Significance Percentage, the interest rate used to project future amounts payable under the Interest Rate Swap Agreement shall be equal to the highest rate reflected on the Implied Forwards Curve available at Bloomberg Financial Markets, L.P. for the remaining term of the Interest Rate Swap Agreement plus the percentage equivalent of a fraction, the numerator of which is 3.00% and the denominator of which is the remaining Distribution Dates on which the Securities Administrator is entitled to receive payments under the Interest Rate Swap Agreement). The discount rate used to determine the net present value of the estimated future amounts payable shall be equal to the lowest rate reflected on the Implied Forwards Curve. The Securities Administrator shall obtain the Implied Forwards Curve from Bloomberg within 15 Business Days of the respective Distribution Date. To determine the Implied Forwards Curve for such Distribution Date, the Securities Administrator shall take the following steps on the Bloomberg terminal: (1) portions of any Disclosure Document the following keystrokes shall be entered: fwcv , 32 (or any such other similar material required to be reviewed by Landlord under a Fee Mortgagenumber as represents the United States) identified by Landlord to be reviewed by Tenant, which portions 3 ; (2) the Forwards shall be limited set to any portions relating solely “1-Mo”; (3) the Intervals shall be set to Tenant Information“1-Mo”; provided that, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii4) certifying as the Points shall be set to equal the accuracy remaining term of the representations made by Tenant to Landlord under Section 8.2 Interest Rate Swap Agreement in months and Exhibit L as the Securities Administrator shall click . For purposes of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required estimating future amounts payable under the Existing Fee Mortgage Documents to pay such costsInterest Rate Swap Agreement, the accrual period for both the Fixed Amounts and the Floating Amounts (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iiias defined in the Interest Rate Swap Agreement) shall be prepared assumed to be a 30-day period in compliance with applicable federal securities laws, including Regulation Sa 360-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 Landlday year.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Renaissance Home Equity Loan Trust 2007-3), Pooling and Servicing Agreement (Renaissance Home Equity Loan Trust 2007-3)
Statements. Tenant shall furnish or cause to be furnished the following to Landlord:
(i) As to each SPE Tenant: (a) Within 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, plus a calculation of EBITDAR for such Fiscal Year; 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, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)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 CECERI:
(A) annual financial statements audited by CECERI’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 CECERI, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC ERI and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CECERI’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 CECERI, together with a certificate, executed by the chief financial officer or treasurer of CEC ERI certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)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 the each Facility with respect to the prior Lease 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 the 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 (or Manager) 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 the 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 the any Facility, Tenant, CEOC, CEC ERI and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC ERI and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve)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) a calculation of EBITDAR; and (D) 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 10.510.5(d);
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b10.5(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 the 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
(xixxxi) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix))Landlord, reasonably cooperate with Landlord in providing information with respect to the PropertyLeased 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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlLandlord, 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) 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 SPE Tenant: (a) Within ninety (90) days after Available Funds and each Class’ Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 such Distribution Date and a statement setting forth the Facility), a written notice 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which 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; and
(xix) In connection with any Fee Mortgagee SecuritizationAgreement, Tenant shallsuch periodic, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except special or other reports or information, whether or not provided for herein, as shall be necessary, reasonable or appropriate with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information Certificateholder or otherwise with respect to the Propertypurposes 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;
(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, purpose except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information as set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlthis 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 NetApp shall furnish or cause submit to Dot Hill, [...***...], a complete and accurate statement of account, in such form and containing such information as may be mutually agreed by the parties at any time and from time to time. Notwithstanding anything to the contrary, such information to be furnished submitted by NetApp shall, at a minimum, include the following to Landlord:
following: (i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end total units of each of the first three Fiscal Quarters Royalty-Bearing Items, by product or part number, sold, distributed or otherwise made available to any third party by the aggregate of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and lossNetApp, a balance sheetNetApp DCM or any of their respective Affiliates (for the avoidance of doubt NetApp may provide the aggregate data by each product or part number for all such units regardless of whether they are sold, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed distributed or otherwise made available by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 lossNetApp, 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 NetApp DCM or any 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018respective Affiliates); 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 “real estate investment trust” (within the meaning of Section 856(a) identity of the Code)) NetApp DCM’s which manufacture each of the Royalty-Bearing Items; and (iii) any other federal, state a calculation of the total amount due and payable to Dot Hill under this License Agreement by each product or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, part number for the relevant NetApp fiscal month reporting period. Each statement shall be in each case of clause (i), (ii) writing and (iii), subject certified by NetApp and sent by NetApp to Section 23.1(c) below;
(iii) As a Dot Hill-designated address. Dot Hill shall submit an invoice to CEC:
(A) annual financial statements audited by CEC’s Accountant in accordance with GAAP covering NetApp for the amount payable based on such Fiscal Year and containing statement of profit and loss, a balance sheet, and account [...***...] its receipt of such statement of cash flows for CEC, including the report thereon by such Accountant which from NetApp. The amounts due to Dot Hill under this License Agreement shall be unqualified as due and payable to scope of audit of CEC Dot Hill [...***...] (the “Payment Term”) occurring during the period commencing on the Effective Date and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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 on March 31, 2017);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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 31.32011. Without limitation of Notwithstanding the foregoing, if NetApp has submitted to Dot Hill [...***...] a complete and accurate statement of account containing proper information for such NetApp [...***...], but Dot Hill has not issued an invoice to NetApp based on such statement within [...***...] after Dot Hill’s receipt of such statement from NetApp, then there will be a day-for-day delay in connection with the Existing Fee Mortgage, 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 SPE Tenant: (A) a rent roll Payment Term for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room and entertainment operating metrics 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 (not including any contributions amount due from NetApp that is based on such statement which will be equal to the FF&E Reserve)number of days that such invoice had been issued late by Dot Hill, and other information reasonably necessary and sufficient to fairly represent i.e., the financial position and results number of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget days beyond [...***...] 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 invoice was issued late 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlDot Hill.
Appears in 1 contract
Sources: Technology License Agreement (Dot Hill Systems Corp)
Statements. Tenant (a) Not later than 12:00 noon New York time on the Distribution Date, the Trustee shall furnish or cause deliver to the Master Servicer, the Depositor and to the Certificate Insurer, by telecopy, with a hard copy thereof to be furnished delivered on such Distribution Date, a statement (the following "Trustee's Remittance Report") (based solely on the information provided pursuant to LandlordSection 4.1) containing the information set forth below with respect to such Distribution Date:
(i) As to SPE Tenant: The Available Funds for the related Distribution Date;
(aii) Within ninety (90) days after the end The Class A Principal Balance of each Fiscal Year (commencing with Class, the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Aggregate Loan Balance and the applicable Aggregate Loan Balance as reported in the prior year Fiscal QuarterTrustee's Remittance Report, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subjector, in the case of quarterly financial statementsthe first Determination Date, the Original Class A Principal Balance of each Class, and the Cut-Off Date Aggregate Loan Balance;
(iii) The aggregate amount of collections received on the Mortgage Loans on or prior to the Determination Date in respect of the preceding Collection Period, separately stating the amounts received in respect principal and interest and reporting separately, the amounts received in respect of scheduled principal payments and the amounts representing Principal Prepayments;
(iv) The amount repaid by the Seller or Master Servicer (reported separately) pursuant to Sections 2.2, 2.6 or 3.1;
(v) The amount of the Monthly Advances to be made with respect to such Distribution Date;
(vi) The Class A Principal Distribution for the Distribution Date with the components thereof stated separately and the Class Interest Distribution for the Distribution Date and for each Class, stating separately the components thereof; and the Class B-IO Distribution Amount for such Distribution Date, separately stating the components thereof;
(vii) The amount, if any, of the Outstanding Class Interest Carryover Shortfall and Outstanding Class A Principal Carryover Shortfall for each Class after giving effect to the distributions on such Distribution Date;
(viii) The amount of the Insured Payment, if any, to normal year-end audit adjustments be made on the Distribution Date;
(ix) The Class A Principal Balance of each Class and the absence Aggregate Class A Principal Balance after giving effect to the distribution to be made on the Distribution Date;
(x) The weighted average remaining term to maturity of footnotesthe Mortgage Loans and the weighted average Loan Rate;
(xi) The Servicing Fee and the amount to be paid to the Certificate Insurer, separately stated, pursuant to Sections 5.1(a)(i)(D), 5.1(a)(ii)(A) and 5.1(a)(ii)(B);
(iixii) As The amount of all payments or reimbursements to CEOC:the Master Servicer pursuant to Section 3.3;
(Axiii) annual financial statements audited by CEOC’s Accountant The Pool Factor determined using the balances in accordance with GAAP covering subclause (x) above, computed to six (6) decimal places;
(xiv) The O/C Amount, the O/C Reduction Amount, the Excess O/C Amount and the Specified O/C Amount for the Distribution Date and the Excess Spread for such Fiscal Year and containing statement Distribution Date;
(xv) The amount of profit and loss, a balance sheet, and statement Distributable Excess Spread to be distributed to the Class A Certificateholders on such Distribution Date pursuant to Sections 5.1(a)(i)(E) on such Distribution Date;
(xvi) The number 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 Mortgage Loans outstanding at the dates indicated beginning 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 at the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017)related Collection Period;
(Bxvii) 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 orThe aggregate Liquidation Loss Amount, if a Tenant Event any, for the preceding Collection Period, the cumulative Total Losses and the Rolling Three Month Delinquency Rate;
(xviii) The Aggregate Loan Balance, as of Default has occurredthe end of the Collection Period related to such Distribution Date;
(xix) The number and aggregate Principal Balances of Mortgage Loans (w) as to which the Monthly Payment is delinquent for 30-59 days, specifying 60-89 days and 90 or more days, respectively, (x) that have become REO, in each case as of the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretoend of the preceding Collection Period, (y) that are in foreclosure, and (Bz) 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 Mortgagor of which shall be provided (x) within sixty (60) days after is the end subject of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); andany bankruptcy or insolvency proceeding;
(Cxx) The unpaid principal amount of all Mortgage Loans that became Liquidated Mortgage Loans during 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 Collection Period;
(ixxi) 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 The Net Liquidation Proceeds received during the Term of this Lease, such Collection Period;
(iixxii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” The book value (within the meaning of Section 856(a12 C.F.R. ss. 571.13 or comparable provision) of any real estate acquired through foreclosure or grant of a deed in lieu of foreclosure; and
(xxiii) Such other information as is required by the Code)) Code and (iii) any other federalregulations thereunder to be made available to Holders of the Class A Certificates. The Trustee shall forward such report to the Master Servicer, state or local regulatory agency the Depositor, the Certificate Insurer, the Certificateholders and the Rating Agencies on such Distribution Date. The Trustee may fully rely upon and shall have no liability with jurisdiction over Landlordrespect to information provided by the Master Servicer. To the extent that there are inconsistencies between the telecopy of the Trustee's Remittance Report and the hard copy thereof, PropCo 1, PropCo or Landlord REIT, in each the Master Servicer may rely upon the latter. In the case of clause (i), information furnished pursuant to subclause (ii) and (iii)above, subject to Section 23.1(c) below;
(iii) As to CEC:
(A) annual financial statements audited by CEC’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 CEC, 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 CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 theretotime during the calendar year was a Class A or Class B-IO 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 necessary to provide to such Person a statement containing the information set forth in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date;
subclauses (vi) and (vii) Within three (3) Business Days of obtaining actual knowledge above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the occurrence of a Tenant Event of Default (or 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 occurrence Code as are in force from time to time.
(c) On each Distribution Date, the Trustee shall forward to the Residual Certificateholders a copy of any facts or circumstances which, with the giving of notice or reports forwarded to the passage of time would ripen into a Tenant Event of Default Class A and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or Class B-IO Certificateholders in respect of such Distribution Date and a statement setting forth the Facility), a written notice amounts actually distributed to Landlord regarding the same, which notice shall include a detailed description of Residual 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which 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 the Code as from time to time in force.
(e) The Master Servicer and the Trustee shall furnish to each Certificateholder and to the Certificate Insurer (if requested in writing), during the term of this Lease;
(xviii) The monthly reporting required pursuant to Section 4.1 hereof; and
(xix) In connection with any Fee Mortgagee SecuritizationAgreement, Tenant shallsuch periodic, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except special, or other reports or information, whether or not provided for herein, as shall be necessary, reasonable, or appropriate with respect to the Existing Fee MortgageCertificateholder or the Certificate Insurer, which shall be at as the sole cost and expense of Tenant as provided in the final sentence of this clause (xix))case may be, reasonably cooperate with Landlord in providing information or otherwise with respect to the Propertypurposes 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 (iif requested in writing) any material non-public informationas the Certificateholder or the Certificate Insurer, (ii) any Competitively Sensitive Informationas the case may be, and (iii) any information subject to bona fide confidentiality restrictionsmay 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 provided 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;
(B) review, re-review and, to the extent accurate, approve (this Agreement and to the extent inaccurate, identify the same with particularity) portions of any Disclosure Document (required by law 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, except with respect to the Existing Fee MortgageRating Agencies, such Disclosure Document shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public informationthe Depositor, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions; and
(C) with respect to the Existing Fee MortgageCertificate Insurer's reinsurer, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact parent, regulators, liquidity providers and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 auditors and to the extent the Seller instructs the Trustee in acting to furnish information regarding the Trust or the Mortgage Loans to third-party information providers. No Person entitled to receive copies of such compliance with federal securities laws, including Regulation S-X (and reports or tapes or lists of Certificateholders shall use the information therein for the purpose of soliciting the customers of the Seller or for any prior periods required thereunder), is required to enable Landlother purpose except as set forth in this Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Union Residential Securitization Transactions Inc)
Statements. Tenant (a) On or before the 25th day of each month, Buyer shall furnish or cause to be furnished send Producer an invoice for the following to Landlord:
immediately previous month (the “Invoice Month”) showing (i) As the number of Barrels purchased and sold pursuant to SPE Tenant: this Agreement for such Invoice Month (aii) Within ninety the Buyer Purchase Price for such Invoice Month, (90iii) the Producer Purchase Price for such Invoice Month, (iv) any other amounts owed by Buyer pursuant to this Agreement and (v) any other amounts owed by Producer pursuant to this Agreement. To the extent (x) the sum of (iii) plus (v) minus (y) the sum of (ii) plus (iv) is a positive number, Producer shall pay such difference to Buyer. If such difference is a negative number, Buyer shall pay such difference to Producer. If such amount equals 0, no payments need be made by either Party.
(b) Each invoice shall be accompanied by reasonable supporting information for all amounts charged by such invoice; provided that to the extent any amount appearing on an invoice is in respect of an amount paid by Buyer to a Third Party (collectively, the “Reimbursed Amount”) or the calculation of such Reimbursed Amount is contingent on information provided by a Third Party (collectively, the “Conditional Amount”), such Reimbursed Amount and Conditional Amount, shall be reflected on an invoice within 90 days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31month in which such Reimbursed Amount was paid by Buyer. If actual measurements of quantities of Producer’s Product are not available in any month, 2017), annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year Buyer may prepare and containing statement of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of SPE Tenant and submit its Subsidiaries invoice based 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’s Accountant in connection with such Financial Statements has been made in accordance with GAAPestimated quantities, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject corrected 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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, actual quantities 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 reasonably practicable after the end of each Fiscal Year, a statement of Net Revenue with respect to the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlquantities become available.
Appears in 1 contract
Sources: Crude Oil Purchase and Sale Agreement (Noble Midstream Partners LP)
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 SPE Tenant: (a) Within ninety (90) days after Available Funds for each Loan Group and in the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter aggregate and the applicable prior year Fiscal Quarter, in Certificate Rate for each case, to Class for the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 such Distribution Date and a statement setting forth the Facility), a written notice 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 Securities Administrator 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 they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which 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; and
(xix) In connection with any Fee Mortgagee Securitizationprepare such report and in a format acceptable to the Securities Administrator, Tenant shallwhether or not provided for herein, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except as shall be necessary, reasonable or appropriate with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information Certificateholder or otherwise with respect to the Propertypurposes 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;
(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, purpose except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information as set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Renaissance Home Equity Loan Trust 2004-4)
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 SPE Tenant: (a) Within ninety (90) days after Available Funds and each Class’ Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 Required Overcollateralization Amount as of the Facility)close of business on the Distribution Date, after giving effect to distributions of principal on such Distribution Date;
(x) whether a written notice to Landlord regarding Cumulative Loss Event or a Delinquency Event has occurred and is continuing and the same, which notice shall include a detailed description calculation thereof;
(xi) the number and Principal Balances of 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 Tenant Event 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 Default 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) for each Pre-Funding Distribution Date, 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;
(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 Interest Rate Cap Agreement, 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 report to the FacilityServicer, Tenantthe Seller, CEOCthe Certificate Insurer, CEC the Certificateholders, the Rating Agencies, Bloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) and their Affiliates which shall be limited to balance sheets and income statements Intex Solutions (andat ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, without limitation▇▇▇▇▇▇▇, all information concerning Tenant▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, CEOC, CEC and any of their Affiliates, respectively, or Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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 (iii) of this parenthetical), as is reasonably necessary to the extent reasonably requested by provide to 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;
(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 Person 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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that statement containing the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause subclauses (Biii) does not at the time furnished contain any untrue statement of any material fact and (iiiv) certifying as to the accuracy above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the representations made by Tenant Trustee shall be deemed to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any such representation is made 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 a specific date, the reports forwarded to the Holders of the Regular Certificates in which case such representation is accurate and complete in all material respects as respect of such specific dateDistribution Date and a statement setting forth the amounts actually distributed to the Class R Certificateholders on 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, and (y) 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 such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs requirements of the Existing Fee Mortgagee Code as from time to time in connection therewith force.
(e) The Servicer and the Trustee shall furnish to the Certificate Insurer, the Depositor, the Seller 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 copied or distributed except to the extent Landlord is required under by law or to the Existing Fee Mortgage Documents Rating Agencies. No Person entitled to pay receive copies of such costs, and (II) reimburse Landlord reports or diskettes or files or lists of Certificateholders shall use the information therein for the purpose of soliciting the customers of the Seller or for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared other 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Renaissance Home Equity Loan Tr Asset BKD Cer Series 2002-3)
Statements. Tenant shall furnish or cause to be furnished the following statements to Landlord:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Tenant’s Parent’s Fiscal Year Years (commencing with the Fiscal Year ending December 31, 2017)2022): (x) Tenant’s Parent’s Financial Statements; (y) a certificate, annual financial statements audited executed by an Accountant in accordance a Responsible Officer of the Tenant’s Parent (a) certifying that no default has occurred under this Lease or, if such a default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; respect thereto and (b) setting forth the calculation of the financial covenant set forth in Section 23.3(a) hereof in reasonable detail as of such Fiscal Year (commencing with the Fiscal Year ending [ ● ]4); and (z) a report with respect to Tenant’s Parent’s Financial Statements from Tenant’s Parent’s accountants, which report shall be without a going concern or similar qualification or exception as to scope (other 4 NTD: To be the first Fiscal Year ending on or after the last day of the fourth full fiscal quarter ending after the Commencement Date. than any going concern or similar qualification or exception related to (i) an upcoming maturity date within sixty twelve (6012) months under any Indebtedness or any projected financial performance in such twelve month period, (ii) any prospective or actual default of any financial covenant or event of default under Section 23.3(a) hereof or any Indebtedness or (iii) an Unavoidable Delay and/or a Discretionary Closure);
(ii) Within forty-five (45) days after the end of each of the first three Fiscal Quarters (3) fiscal quarters of each the Tenant’s Parent’s Fiscal Year (commencing with the Fiscal Quarter fiscal quarter ending March 31[ ● ]5, 20182022), SPE a copy of Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR Parent’s Financial Statements for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirementperiod, together with a certificate, executed by the chief financial officer or treasurer a Responsible Officer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP ’s Parent (subject, in the case of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotes);
(iii) 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 default has occurred or, if such a Tenant Event of Default default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all (ii) setting forth the calculation of which shall be provided within ninety (90the financial covenant set forth in Section 23.3(a) days after the end hereof in reasonable detail as of each Fiscal Year such fiscal quarter (commencing with the Fiscal Year fiscal quarter ending December 31, 2017);
(B[ ● ]6) 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 (Biii) certifying that such Financial Statements fairly present, in all material respects, the financial position condition and results of operations of CEOC Tenant’s Parent 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 Tenant will furnish to CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’s Accountant in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided Landlord annually within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 following the end of each Fiscal Year, the Annual Certificate;
(iv) Within forty-five (45) days after the expiration of any calendar quarter, Tenant shall deliver to Landlord a statement of Net Revenue with respect to quarterly operating report in substantially the Facility with respect to the prior Lease Year (subject to the additional requirements form attached hereto as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder);Exhibit G.
(v) Prompt Notice to Landlord of any action, proposal action or investigation by any agency or entity, or complaint to such agency or entity 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 Tenantmodify, 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 whichand such revocation, in any case under this clause (y) (individually suspension, termination, modification, failure to renew or collectively), continuation would reasonably be reasonably expected to cause have a material adverse effect on Tenant Tenant, the Facility, or on the Leased Property, in respect of the Facility (andeach case, 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 (or Manager) from (or to) any Gaming Authorities)taken as a whole;
(vi) Within ten As soon as it is prepared and in no event later than ninety (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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (2590) days after the end of each calendar month the following items as they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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 a capital and operating budget, including projections by fiscal quarter, for the commencement of Facility for the Fiscal Year to in 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 hereofit is delivered; and
(xixvii) In connection Concurrently with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(AFinancial Statements delivered pursuant to Section 23.1(b)(i) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)Section 23.1(b)(ii), a report containing a reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement detailed description of any material fact Capital Improvements and (ii) certifying as to other material capital expenditures 5 NTD: To be the accuracy of first fiscal quarter ending after the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlCommencement Date.
Appears in 1 contract
Statements. Tenant shall furnish or cause to be furnished the following to Landlord:
(i) As to SPE Tenant: (a) Within ninety (90) days after No later than each Determination Date, ---------- the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, Servicer shall deliver to the extent required Indenture Trustee a magnetic tape or computer disk providing such information regarding the Servicer's activities in servicing the Home Loans during the related Due Period as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);Indenture Trustee may reasonably require.
(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 Subject to the modification of the Servicer's Monthly Statement by such Accountant which report shall be unqualified as to scope the Servicer with the prior written consent 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 Majority Securityholders 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 certificateIndenture Trustee, 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 before each Payment Date, the Servicer shall prepare and the Indenture Trustee shall distribute a monthly statement (the "Servicer's Monthly Statement", with respect to such Payment Date) to the Seller, the Securityholders and each Rating Agency, stating the date of obtaining actual knowledge original issuance of the occurrence of a Tenant Event of Default Securities (or day, month and year), the name of the occurrence of any facts or circumstances whichIssuer (i.e., with "FIRSTPLUS Home Loan Owner Trust 1997-3"), 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 series designation of the FacilitySecurities (i.e., "Series 1997-3"), a written notice to Landlord regarding the same, which notice shall include a detailed description date of the Tenant Event of Default (or such facts or circumstances) this Agreement and the actions Tenant has taken or shall takefollowing information:
(i) the Available Collection Amount, the Regular Payment Amount and the Excess Spread for the related Payment Date;
(ii) the amount, if any, on deposit in the Pre-Funding Account and the Capitalized Interest Account on such Payment Date;
(iii) the Class Principal 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 remedy payments and distributions made to the holders of such Tenant Event Securities on such Payment Date;
(iv) the Class Pool Factor with respect to each Class of Default Securities then outstanding;
(or v) the amount of principal and interest received on the Home Loans during the related Due Period;
(vi) the amount, if any, of the Overcollateralization Surplus Amount;
(vii) the Servicing Compensation for such facts or circumstances)Payment Date;
(viii) Such additional customary and reasonable financial information the Overcollateralization Amount with respect to such Payment Date, the Required Overcollateralization Amount as of such Payment Date, the Net Loan Losses incurred during the related to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses Due Period and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, in the form attached hereto as Exhibit Icumulative Net Loan Losses with respect to such Payment Date;
(ix) The compliance certificatesthe amount, as and when required pursuant if any, paid on such Payment Date to Section 4.3each Class of Subordinate Securities in respect of Deferred Amounts;
(x) The Annual Capital Budget as and when required in Section 10.5with respect to each Class of Subordinate Securities, the amount of any applicable Deferred Amounts remaining unreimbursed after giving effect to payments made on such Payment Date;
(xi) The monthly revenue the weighted average maturity of the Home Loans and Capital Expenditure reporting required pursuant to Section 10.5(b)the weighted average Home Loan Interest Rate of the Home Loans each as of such Payment Date;
(xii) Together certain performance information, including delinquency and foreclosure information with the monthly reporting required pursuant respect to the preceding clause (xi)Home Loans, an updated rent roll and a summary of all leasing activity then taking place at as set forth in the FacilityServicer's Monthly Remittance Report;
(xiii) Operating budget for each SPE Tenant for each Fiscal Yearthe amount of any Servicing Advance Reimbursement Amount to be paid to the Servicer on such Payment Date, which shall be delivered to Landlord no later than fifty-five (55) days and the amount of any Servicing Advance Reimbursement Amount remaining unpaid following the commencement of the Fiscal Year to which such operating budget relatespayment;
(xiv) Within five the number of and aggregate Principal Balance of all Home Loans in foreclosure proceedings (5other than any Home Loans described in clause (xvi)) Business Days after request (or and the percent of the aggregate Principal Balances of such Home Loans to the aggregate Principal Balances of all Home Loans, all 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 Landlordof the close of business on the first day of the related Due Period;
(xv) The quarterly reporting the number of and the aggregate Principal Balance of the Home Loans in respect bankruptcy proceedings (other than any Home Loans described in clause (xvii)) and the percent of Bookings required pursuant the aggregate Principal Balances of such Home Loans to Section 22.7 the aggregate Principal Balances of this Leaseall Home Loans, all as of the close of business on the first day of the related Due Period;
(xvi) The reporting/copies the number of Subleases made by Tenant in accordance with Section 22.3Foreclosure 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 first day of the related Due Period;
(xvii) Any notices or reporting required during the related Due Period, the aggregate Principal Balance of Home Loans for each of the following: (A) that became Liquidated Home Loans, (B) that became Deleted Home Loans pursuant to Article XXXII hereof or otherwise Section 3.05(c) as a result of such Deleted Home Loans being Defective Home Loans, and (C) that became Deleted Home Loans pursuant to any other provision Section 3.05(c) as a result of this Leasesuch Deleted Home Loans being Liquidated Home Loans or a Home Loan in foreclosure, default or imminent default, including the foregoing amounts by loan type (i.e., Combination Loans, Debt Consolidation Loans, Home Improvement Loans, and Purchase or Refinance Loans);
(xviii) The monthly reporting required from the Closing Date through the most current Due Period, the cumulative aggregate Principal Balance of Home Loans for each of the following: (A) that became Liquidated Home Loans, and (B) that became Deleted Home Loans pursuant to Section 4.1 hereof; and3.05(c) as a result of such Deleted Home Loans being in foreclosure, default or imminent default;
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at scheduled principal payments and the sole cost and expense of Landlord (except principal prepayments received with respect to the Existing Fee Mortgage, which shall be at Home Loans during the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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 agenciesrelated Due Period;
(Bxx) reviewthe number of and aggregate principal balance of all Home Loans (both during the related Due Period and in aggregate since the Closing Date) repurchased or substituted pursuant to Sections 2.06, re-review and, to 3.05 or 4.02;
(xxi) whether a Trigger Event has occurred and is continuing; (xxii) the extent accurate, approve (and to number of Home Loans remaining in 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, except with respect to the Existing Fee Mortgage, 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 restrictionsHome Loan Pool; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landl
Appears in 1 contract
Sources: Sale and Servicing Agreement (Firstplus Investment Corp)
Statements. At the request of Landlord, Tenant shall furnish or cause provide to be furnished the following to Landlord:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual Landlord its current financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year or other information discussing financial worth which Landlord shall use solely for purposes of this Lease and containing statement of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 the ownership, management 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);
(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 disposition of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); and
(C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited property subject hereto. ESTOPPEL CERTIFICATES Tenant agrees from time 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 “real estate investment trust” (time within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) from (or to) any Gaming Authorities);
(vi) Within ten (10) Business Days days after the end request of each calendar monthLandlord, a schedule containing any additions to deliver to Landlord, or retirements of any fixed assets constituting Leased PropertyLandlord's designee, describing such assets an estoppel certificate stating that this Lease is in summary form, their location, historical costfull force and effect, the amount date to which Rent has been paid, the unexpired portion of depreciation and any improvements thereto, substantially in the form attached hereto as Exhibit D, this Lease and such additional customary and reasonable financial information with respect other matters pertaining 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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 this Lease as may be reasonably requested by Landlord;
(xv) The quarterly reporting in respect . Failure by Tenant to execute and deliver such certificate shall constitute an acceptance of Bookings required the Premises and acknowledgment by Tenant that the statements included are true and correct without exception. Landlord and ▇▇▇▇▇▇ intend that any statement delivered pursuant to Section 22.7 this Paragraph may be relied upon by any mortgagee, beneficiary, purchaser or prospective purchaser of the Project or any interest therein. The parties agree that ▇▇▇▇▇▇'s obligation to furnish such estoppel certificates in a timely fashion is a material inducement for Landlord's execution of the Lease. SECURITY DEPOSIT ▇▇▇▇▇▇ agrees to deposit with Landlord upon execution of this Lease;
, a Security Deposit as stated in the Basic Lease Information which sum shall be held by Landlord, without obligation for interest, as security for the performance of Tenant's covenants and obligations under this Lease, it being expressly understood and agreed that such deposit is not an advance rental deposit or a measure of damages incurred by Landlord in case of ▇▇▇▇▇▇'s default. Upon the occurrence of any event of default by Tenant, Landlord may, from time to time, without prejudice to any other remedy provided herein or provided by law, use such fund to the extent necessary to make good any arrears of Rent or other payments due to Landlord hereunder, and any other damage, injury, expense or liability caused by such event of default, and Tenant shall pay to Landlord, on demand, the amount so applied in order to restore the Security Deposit to its original amount. Any remaining balance of such deposit shall be returned by Landlord to Tenant at such time after termination of this Lease that all of the Tenant's obligations under this Lease have been fulfilled. TENANT'S REMEDIES Tenant shall look solely to Landlord's interest in the Project for recovery of any judgment from Landlord. Landlord and Landlord's Affiliates shall never be personally liable for any such judgment. ASSIGNMENT AND SUBLETTING Tenant shall not assign or sublet the Premises or any part thereof without Landlord's prior written approval except as provided herein. If Tenant desires to assign this Lease or sublet any or all of the Premises, Tenant shall give Landlord written notice thirty (xvi30) The reporting/copies days prior to the anticipated effective date of Subleases made the assignment or sublease. Landlord shall then have a period of fifteen (15) days following receipt of such notice to notify Tenant in writing that Landlord elects either (1) to terminate this Lease as to the space so affected as of the date so requested by ▇▇▇▇▇▇ (except in the event of an assignment to an Affiliate (as hereinafter defined)), or (2) to permit Tenant to assign this Lease or sublet such space, subject, however, to Landlord's prior written approval of the proposed assignee or subtenant and of any related documents or agreements associated with the assignment or sublease, such consent not to be unreasonably withheld so long as Tenant provides data and documentation reasonably satisfactory to Landlord that demonstrates that the use of the Premises by such proposed assignee or subtenant would be a Permitted Use, and the proposed assignee or subtenant is of sound financial condition (determined in Landlord's reasonable judgment). Any Rent or other consideration realized by Tenant under any such sublease or assignment (except to an Affiliate) in excess of the Rent payable hereunder, after deducting the amortization of (1) the reasonable cost of any improvements which ▇▇▇▇▇▇ has made for the purpose of assigning or subletting all or part of the Premises and (2) reasonable subletting and assignment costs, shall be divided and paid fifty percent (50%) to Tenant, fifty percent (50%) to Landlord. If Tenant is a closely held corporation (i.e., one whose stock is not publicly held and not traded through an exchange or over the counter), a transfer of corporate shares by sale, assignment, bequest, inheritance, operation of law or other disposition (including such a transfer to or by a receiver or trustee in federal or state bankruptcy, insolvency or other proceedings), in one or a series of related transactions, so as to result in a change in the present control of such corporation or any of its parent corporations by the person or persons owning a majority of said corporate shares, shall constitute an assignment for purposes of this Paragraph. If Tenant is a partnership, joint venture or other unincorporated business form, a transfer of the interest of persons, firms or entities responsible for managerial control of Tenant by sale, assignment, bequest, inheritance, or operation of law or other disposition, so as to result in a change in the present control of said entity and/or a change in the identity of the persons responsible for the general credit obligations of said entity shall constitute an assignment for all purposes of this Paragraph. No assignment or subletting by Tenant shall relieve Tenant of any obligations under this Lease. Any assignment or subletting which conflicts with the provisions hereof shall be void. Notwithstanding the foregoing, ▇▇▇▇▇▇▇▇'s consent shall not be required for any assignment of the Lease or sublet of the Premises (either, a "Transfer") to an Affiliate, as long as the following conditions are met: At least fifteen (15) business days before the Transfer, Landlord receives written notice of the Transfer (as well as any documents or information reasonably requested by Landlord regarding the Transfer or the Affiliate); The Transfer is not a subterfuge by Tenant to avoid its obligations or liabilities under the Lease; The Affiliate assumes in writing all of Tenant's obligations under this Lease relating to the portion of the Premises being assigned or sublet; and The Affiliate has a net worth immediately following the Transfer, as evidenced by financial statements delivered to Landlord and certified by an independent certified public accountant in accordance with Section 22.3;
generally accepted accounting principles that are consistently applied (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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A"Net Worth") at least equal to Tenant's Net Worth either immediately before the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, Tenant transfer 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitizationthis Lease, except (x) to the extent that any such representation whichever is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlgreater.
Appears in 1 contract
Statements. Tenant (a) Not later than 12:00 noon, New York time, on each Determination Date, the Master Servicer shall furnish deliver to the Trustee a computer tape (or cause such other report in a form and format mutually agreeable to be furnished the following Master Servicer and the Trustee) as to Landlordeach Mortgage Loan as of the end of the preceding Due Period and such other information as the Trustee shall reasonably require. Not later than 12:00 noon, New York time, on the Distribution Date, the Trustee shall make available to the Master Servicer, the Seller, the Certificate Insurer and the Cap Provider, by telecopy or electronically (as provided below), a statement (the "Trustee's Remittance Report") (based solely on the information contained on the computer tape upon which the Trustee may conclusively rely) containing the information set forth below with respect to such Distribution Date:
(i) As to SPE Tenant: The Available Funds for each Certificate Group and each Class' Certificate Rate for the related Distribution Date;
(aii) Within ninety (90) days after the end The Class Principal Balance of each Fiscal Year (commencing with Class, the Fiscal Year ending December 31, 2017), annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year Pool Principal Balance and containing statement of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each Loan Group Principal Balance of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, Mortgage Loans in each case, to Loan Group as reported in the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subjectprior Trustee's Remittance Report or, in the case of quarterly financial statementsthe first Determination Date, to normal yearthe Original Class Certificate Principal Balance of each Class, the Cut-end audit adjustments Off Date Pool Principal Balance 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);
(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 yearCut-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each Off Date Loan Group Principal Balance of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, Mortgage Loans in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowLoan Group;
(iii) As The aggregate amount of collections received on the Mortgage Loans on or prior to CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 Determination Date in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning preceding Due Period, separately stating the amounts received in respect of Section 856(a) of the Code)) principal 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) belowinterest;
(iv) As soon as it is prepared The number and in no event later than sixty (60) days after Principal Balances of all Mortgage Loans that were the end subject of each Fiscal Year, a statement of Net Revenue with respect to Principal Prepayments during the Facility with respect to the prior Lease Year (subject to 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 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 The 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 the 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 (or Manager) from (or to) any Gaming Authorities)Due Period;
(vi) Within ten (10) Business Days after The principal portion of all Monthly Payments received during 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 DateDue Period;
(vii) Within three (3) Business Days The interest portion of obtaining actual knowledge of all Monthly Payments received on the occurrence of a Tenant Event of Default (or of Mortgage Loans during 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 the 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)Due Period;
(viii) Such additional customary and reasonable financial information related The amount required to be paid by the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements Seller or Master Servicer (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the Facility or the business of Tenant conducted thereat required reported separately) pursuant to the Fee Mortgage DocumentsSections 2.03, within the applicable timeframes required thereunder2.06 or 3.01(f), 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, in the form attached hereto as Exhibit I;
(ix) The compliance certificates, as amount of the Monthly Advances and when required pursuant the Compensating Interest Payment to Section 4.3be made with respect to such Distribution Date;
(x) The Annual Capital Budget as Class A Principal Distribution for each Certificate Group for the related Distribution Date, the Class Interest Distribution for the related Distribution Date to be distributed on each Class of Class A Certificates and when required in Section 10.5Class X Certificates and any Net Funds Cap Carryover Amounts to be distributed on the Group 2 Certificates on the related Distribution Date;
(xi) The monthly revenue amount, if any, of the outstanding Class Interest Carryover Shortfall and Capital Expenditure reporting required pursuant Class A Principal Shortfall Amount for each Class after giving effect to Section 10.5(b)the distributions on the related Distribution Date;
(xii) Together with The Cap Contract Distributions and the monthly reporting required pursuant to Supplemental Interest Distributions owed, if any, on the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at the Facilityrelated Distribution Date;
(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 The amount of the Fiscal Year Insured Payments, if any, to which such operating budget relatesbe made on the related Distribution Date;
(xiv) Within five (5) Business Days after request (or as soon thereafter as may The amount to be reasonably possible), such further detailed information reasonably available distributed to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlordthe Class R Certificateholders for the related Distribution Date;
(xv) The quarterly reporting in respect of Bookings required pursuant Class Principal Balance for each Class after giving effect to Section 22.7 of this Leasethe distribution to be made on the related Distribution Date;
(xvi) The reporting/copies weighted average remaining term to maturity of Subleases made by Tenant the Mortgage Loans in accordance with Section 22.3each Loan Group and the weighted average Loan Rate in each Loan Group;
(xvii) Any notices or reporting required pursuant The Master Servicing Fee to Article XXXII hereof or otherwise pursuant be paid to any other provision of this Leasethe Master Servicer;
(xviii) The monthly reporting required aggregate Premium Amount to be paid to the Certificate Insurer pursuant to Section 4.1 hereof5.01;
(xix) The amount of all payments or reimbursements to the Master Servicer pursuant to Section 3.03;
(xx) The Pool Factor for each Class of Class A Certificates using the balances in subclause (xiv) above, computed to six (6) decimal places;
(xxi) The Base Spread Account Requirement for each Loan Group on the related Distribution Date and the amount on deposit therein for each Loan Group after giving effect to withdrawals therefrom on such Distribution Date;
(xxii) The number of Mortgage Loans outstanding at the beginning and at the end of the related Due Period;
(xxiii) The Pool Principal Balance and the Loan Group Principal Balance for each Loan Group, each as of the end of the Due Period related to such Distribution Date;
(xxiv) Separately stated for each Loan Group, the number and aggregate Principal Balances of Mortgage Loans (w) as to which the Monthly Payment is delinquent for 30-59 days, 60-89 days and 90 or more days, respectively, (x) that have become REO Properties, in each case as of the end of the preceding Due Period, (y) that are in foreclosure and (z) the Mortgagor of which is the subject of any bankruptcy or insolvency proceeding;
(xxv) The unpaid principal amount of all Mortgage Loans that became Liquidated Mortgage Loans during such Due Period;
(xxvi) The Net Liquidation Proceeds received during such Due Period;
(xxvii) The book value (within the meaning of 12 C.F.R.ss. 571.13 or comparable provision) of any real estate acqu▇▇▇▇ ▇▇▇ough foreclosure or grant of a deed in lieu of foreclosure;
(xxviii) For so long as the Master Servicer is the Seller, the Rating Agencies' ratings of the long-term unsecured debt of the Seller (to the extent such information is provided to the Trustee by the Certificate Insurer or the Master Servicer);
(xxix) Cumulative Net Losses and the Ninety Day+ Rolling Average as of such Distribution Date; and
(xixxxx) In connection with any Fee Mortgagee SecuritizationSuch other information as is required by the Code and regulations thereunder to be made available to Holders of the Class A Certificates. The Trustee shall make available such report to the Master Servicer, Tenant shallthe Seller, the Certificate Insurer, the Certificateholders, the Rating Agencies, Bloomberg (at 499 Park Avenue, New York, New York 10022, Attention: Mike Geller) ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇cle, Needham, ▇▇▇▇▇▇▇▇▇▇tts 02144, Attention: Haro▇▇ ▇▇▇▇▇▇▇▇) ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇; ▇rovided, howe▇▇▇, ▇▇▇ ▇▇▇▇▇▇s specified in subclause (xviii) shall be deleted from all reports sent to Bloomberg or Intex Solutions. The Trustee may fully rely upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except shall have no liability with respect to information provided by the Existing Fee Mortgage, which shall be at Master Servicer. In the sole cost and expense case of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect furnished pursuant to the Property, Tenant or its Affiliates (excluding (i) any material non-public information, subclauses (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), (iixii) or and (iiixvii) of this parenthetical)above, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver expressed in a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy separate section of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L report as a dollar amount for each Class for each $1,000 original dollar amount as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation SCut-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 LandlOff Date.
Appears in 1 contract
Statements. Tenant (a) Buyer at its sole expense shall furnish or cause to be furnished prepared and shall deliver to Select an unaudited consolidated statement of Company Revenue as of and for each of CY16, CY17 and CY18, and each such statement shall set forth in reasonable detail a calculation of the Earn-Out for the applicable year (the “Statement”) and shall include all reasonable supporting documentation. Each Statement shall be completed no later than thirty (30) days from the receipt of Buyer’s annual audit for the applicable calendar year.
(b) Select may dispute the Statement by delivering a written notice of objection (a “Notice of Objection”) to Buyer within thirty (30) days of receiving the Statement. During the thirty (30)-day period following Select’s receipt of the Statement, Select and its accountants (which may be either Company’s current auditors) shall, at Select’s expense, be permitted reasonable access to Landlord:
review the working papers of Buyer and Buyer’s independent accountant relating to the Statement. If Select agrees with the Statement or does not give Buyer a Notice of Objection within such thirty (30)-day period, the Statement shall become final and binding and the Sellers and Buyer shall have no further rights to disagree therewith, and the payment of the appropriate Earn-Out Consideration, if any, as determined pursuant to Section 1 of this Exhibit A, shall be made to the Sellers. A Notice of Objection shall set forth in reasonable detail all of those items in the Statement that Select disputes, in which case the items specifically identified by Select shall be deemed to be the only items in dispute, and include all reasonable supporting documentation. Buyer and Select will use commercially reasonable efforts to resolve any such dispute during the thirty (30)-day period commencing on the date Select delivers the Notice of Objection. If Buyer and Select agree in writing upon the Statement within such thirty (30)-day period, the Statement shall become final and binding and the Sellers and Buyer shall have no EXHIBIT A-3 further rights to disagree therewith, and the payment of the appropriate Earn-Out Consideration, if any, as determined pursuant to Section 1 of this Exhibit A, shall be made to the Sellers. If, at the end of the thirty (30)-day period, Buyer and Select have not so resolved such differences, then the items in dispute shall be submitted promptly to the Arbiter. The Arbiter shall be instructed to render a determination of the applicable dispute within thirty (30) days after referral of the matter to the Arbiter, which determination must be in writing and must set forth, in reasonable detail, the basis therefor. The determination of the Arbiter shall (absent manifest error or fraud) be conclusive and binding upon Buyer, the Companies and the Sellers and judgment may be entered upon the determination of the Arbiter in any court having jurisdiction over the party against which such determination is to be enforced. The Arbiter shall determine, based solely on presentations by Buyer and Select and their respective representatives, and not by independent review, only those items disputed in the Notice of Objection that have not been agreed upon in writing by the parties and shall not otherwise investigate any matter independently. In resolving any disputed item, the Arbiter shall be bound by the Accounting Principles Consistently Applied, the definitions of Annualized Company Revenue and Company Revenue and the resulting Earn-Out Consideration and the other requirements of the provisions of this Exhibit A, and shall not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. Notwithstanding any provisions hereof to the contrary, the Arbiter shall be deemed to be acting as an expert and not as an arbitrator and shall decide only those issues as to which the parties are not in agreement on the grounds that the Statement delivered by Buyer pursuant to Section 3(a) of this Exhibit A was not prepared in accordance with the terms of this Earn-Out, is based on incomplete or inaccurate information or contains computational errors. The fees, costs and expenses of the Arbiter (i) As shall be paid by Buyer in the proportion that the aggregate dollar amount of such disputed items so submitted that are successfully disputed by Select (as finally determined by the Arbiter) bears to SPE Tenant: (a) Within ninety (90) days after the end aggregate dollar amount of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; items so submitted and (bii) within sixty shall be paid by Select in the proportion that the aggregate dollar amount of such disputed items so submitted that are unsuccessfully disputed by Select (60as finally determined by the Arbiter) days after bears to the end aggregate dollar amount of each such items so submitted. Each of the first three Fiscal Quarters of each Fiscal Year (commencing with Buyer, the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Companies and the applicable prior year Fiscal QuarterSellers shall cooperate with, make their relevant financial records available to and otherwise provide reasonable assistance to each other and their respective accountants and other representatives, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 requesting party’s sole cost 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 certificateexpense, 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 at reasonable times during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the Facility or the regular 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, hours in connection with the Existing Fee Mortgagepreparation by Buyer, Tenant will furnish, during the review by Buyer 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve)Select of, and other information reasonably necessary and sufficient to fairly represent the financial position and results resolution of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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 any objections 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 hereofto, the Statement; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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 review an accountant’s working papers, Buyer or Select (or their respective representatives) shall execute any releases or waivers customarily adheres or which may be reasonably required by prospective investors and/or rating agencies;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization accountant in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landltherewith.
Appears in 1 contract
Sources: Stock Purchase Agreement
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 SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Available Funds and the applicable prior year Fiscal Quarter, in Certificate Rate for each case, to Class for the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 January 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 S 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 such Distribution Date and a statement setting forth the Facility), a written notice 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which 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; and
(xix) In connection with any Fee Mortgagee SecuritizationAgreement, Tenant shallsuch periodic, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except special or other reports or information, whether or not provided for herein, as shall be necessary, reasonable or appropriate with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information Certificateholder or otherwise with respect to the Propertypurposes 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;
(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, purpose except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information as set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Renaissance Home Equity Loan Trust 2003-4)
Statements. Tenant shall furnish or cause to be furnished the following statements to Landlord:
(i) As (I) In the event that ▇▇▇▇▇▇’s Parent is a reporting company under the Exchange Act, on the earlier of five (5) Business Days following (x) each date specified in the Exchange Act and the SEC’s related rules and regulations (including any additional time permitted under Rule 12b-25 or any successor provision thereof) that the Tenant’s Parent is required to SPE file SEC Reports (each a “SEC Filing Deadline”) and (y) the date the Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing ’s Parent files its SEC Reports with the Fiscal Year ending December 31, 2017), annual financial statements audited by an Accountant SEC or (II) in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE event that Tenant’s quarterly unaudited financial statementsParent is not a reporting company under the Exchange Act, consisting of a statement of profit and lossno later than five (5) Business Days prior to Landlord REIT’s applicable SEC requirements, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each caseif any, to the extent required as an Additional Fee Mortgagee Requirementfile, together with a certificateor include in any of Landlord REIT’s SEC Reports, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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:
Parent’s Financial Statements: (A) annual financial statements audited by CEOCTenant’s Accountant Parent’s Financial Statements required to be included in accordance with GAAP covering such Fiscal Year and SEC Report or the SEC Report 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 Statements; (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 a Responsible Officer of the chief financial officer Tenant or treasurer of CEOC Tenant’s Parent certifying that no Tenant Event of Default default has occurred under this Master Lease or, if such a Tenant Event of Default default has occurred, specifying the nature and extent thereof status of such default; and any corrective action taken or proposed to be taken (C) (1) with respect theretoto annual Financial Statements, all a report with respect to Tenant’s Parent’s Financial Statements from Tenant’s Parent’s independent registered public accounting firm, which report shall not be subject to any qualification or exception expressing substantial doubt about the ability of which shall be provided within ninety the Tenant’s Parent and its subsidiaries to continue as a “going concern” or any exception as to the scope of such audit (90excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date such report is delivered or any projected financial performance or covenant default in any Indebtedness or this Master Lease in such twelve month period) days after the end of each Fiscal Year (commencing and that such Financial Statements have been prepared in accordance with GAAP and Tenant’s Parent’s accountants have examined such Financial Statements in accordance with the Fiscal Year ending December 31standards of the PCAOB (or generally accepted auditing standards, 2017);
if not required to file SEC Reports at such time) and (B2) with respect to quarterly unaudited financial statementsFinancial 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 a Responsible Officer of the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred orTenant’s Parent, 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 Tenant’s Parent and its Subsidiaries on a consolidated basis in accordance with GAAP as at such date and for such period (subject to normal year-end audit adjustments and adjustments, the absence of footnotesfootnotes and other informational disclosures customarily omitted from interim financial statements), all of which . Financial statements required to be delivered pursuant to this Section 23.1(b)(i) will be deemed delivered to the extent such documents are included in materials filed with the SEC and shall be provided deemed to have been delivered on the date such documents are publicly available on the SEC’s website;
(xii) within sixty Within seventy-five (6075) days after the end of each of the first three Tenant’s Fiscal Quarters of each Fiscal Year Years (commencing with the Fiscal Quarter Year ending March December 31, 20182022); and, (a) a budget and projection by fiscal month for the Fiscal Year in which the budget is delivered, including projected Net Revenue and EBITDAR with respect to each Facility, (b) a budget and projection by fiscal year for the second and third subsequent Fiscal Years, including projected Net Revenue and EBITDAR with respect to each Facility, and (c) a capital budget for each Facility for the Fiscal Year in which the budget is delivered and for the following Fiscal Year;
(Ciii) Within thirty (30) days after the end of each calendar month, the following items as they pertain to each Facility: occupancy percentages, including average daily rate and revenue per available room for the subject month, the monthly and year-to-date operating statements prepared for each calendar period, noting 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 Facility and its respective Operating Subtenant during such calendar period;
(iv) Within sixty (60) days after the expiration of any calendar quarter, Tenant shall deliver to Landlord a Financial Covenant compliance report, which report shall include an Officer’s Certificate in substantially the form attached hereto as Exhibit H, certifying that the Financial Covenant is in compliance under Section 23.3 together with reasonable detail evidencing such compliance;
(v) (a) commercially reasonable efforts to deliver such additional financial information and projections as may be reasonably requested by Landlord, so long as any reasonable out-of-pocket cost of Tenant or its Related Persons is borne by Landlord, in connection with syndications, private placements or public offerings by Landlord of debt securities or loans or equity or hybrid securities and (b) such additional information information, Tenant’s Parent Financial Statements if not otherwise provided pursuant to Section 23.1(b)(i), and unaudited quarterly financial information concerning the Leased Property Property, Tenant, and Tenant, which information shall be limited to balance sheets, income statements, and statements of cash flow, ’s Parent as Landlord, PropCo 1, PropCo Landlord or Landlord REIT its Affiliates may require for any ongoing their 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 SEC Reports and registration statements to be filed by Landlord, PropCo 1, PropCo Landlord or Landlord REIT its Affiliates during the Term of this Master Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo Landlord or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) belowits Subsidiaries;
(iii) As to CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder);
(vvi) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity 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 materially 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 material 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 the 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 (or Manager) 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 whichUpon request, 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause not 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 SPE Tenant: (A) a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue made more than once per available room and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(xii) Together with the monthly reporting required pursuant to the preceding clause (xi)fiscal quarter, an updated rent roll and a summary of all leasing activity then taking place at the for each Facility;; and
(xiiiviii) Operating budget for each SPE Tenant for each Fiscal Year, which shall further agrees to provide the financial and operational reports to be delivered to Landlord no later than fifty-five (55under this Master Lease in such electronic format(s) 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 reasonably be reasonably possible), such further detailed information reasonably available required by Landlord from time to Tenant with respect time in order 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, Tenant or its Affiliates (excluding (i) any material non-public informationfacilitate Landlord’s internal financial and reporting database, (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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as permit Landlord to the accuracy of the representations made by Tenant calculate any rent, fee or other payments due under Ground Leases. ▇▇▇▇▇▇ also agrees that Landlord shall have audit rights with respect to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) information to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) required to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection confirm Tenant’s compliance with the Existing Fee Mortgageterms of this Master Lease (including, Tenant shall (I) be responsible for the costs without limitation, calculation of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 thereunderNet Revenues), 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 Landl.
Appears in 1 contract
Sources: Master Lease (VICI Properties L.P.)
Statements. Tenant (a) No later than each Determination Date, the Servicer shall furnish deliver to the Indenture Trustee a magnetic tape, computer disk or cause such other electronic format as shall be mutually agreeable to be furnished the Servicer and the Indenture Trustee providing such information regarding the Servicer's activities in servicing the Home Loans during the related Due Period as the Indenture Trustee may reasonably require.
(1) Subject to the modification of the Servicer's Monthly Remittance report by the Servicer with the prior written consent of the Majority Securityholders and the Indenture Trustee, no later than each Payment Date, the Indenture Trustee shall prepare and distribute a monthly statement (the "Payment Statement", with respect to such Payment Date) to 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., "Master Financial Asset Securitization Trust 1998-2"), the series designation of the Securities (i.e., "Series 1998-2"), the date of this Agreement and the following to Landlordinformation:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with Available Collection Amount, the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Regular Payment Amount and the applicable prior year Fiscal Quarter, in each case, to Excess Spread for the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 Payment Date;
(ii) As the amount, if any, on deposit in the Pre-Funding Account and the Capitalized Interest Account on such Payment Date;
(iii) the Class Principal Balance or Class Notional Balance of each Class of Notes, and the Pool Principal Balance as of the last day of the related Due Period and after giving effect to CEOC:payments and distributions made to the holders of such Notes on such Payment Date;
(iv) the Class Pool Factor with respect to each Class of Notes then outstanding;
(v) the amount of principal and interest received on the Home Loans during the related Due Period;
(vi) the Overcollateralization Deficiency Amount, and any amount to be distributed to the Noteholders or the holders of the Residual Interest on such Payment Date;
(vii) the Servicing Compensation, the Indenture Trustee Fee, the Grantor Trustee Fee, the Owner Trustee Fee and, the Custodian Fee, if any, for such Payment Date;
(viii) the Overcollateralization Amount (or Undercollateralization Amount) on such Payment Date, the Overcollateralization Target Amount as of such Payment Date, the Net Loan Losses incurred during the related Due Period, the cumulative Net Loan Losses as of such Payment Date, the Allocable Loss Amount for such Payment Date and the application of the Allocable Loss Amount Priority for such Payment Date;
(ix) the weighted average maturity of the Home Loans and the weighted average Home Loan Interest Rate of the Home Loans;
(x) certain performance information, including, without limitation, delinquency and foreclosure information with respect to the Home Loans and 60-Day Delinquency Amounts (as defined in the definition of "Six-Month Rolling Delinquency Average" in Section 1.01 hereof), as set forth in the Servicer's Monthly Remittance Report, the Net Delinquency Calculation Amount and if an Overcollateralization Target Trigger Event has occurred and is continuing;
(xi) the amount of any Make Whole Servicing Fee to be paid to the Servicer on such Payment Date;
(xii) the number of and aggregate Principal Balance of all Home Loans in foreclosure proceedings 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 and the aggregate Principal Balance of the Home Loans in bankruptcy proceedings 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) 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;
(xv) during the related Due Period (and cumulatively, from the Closing Date through the most current Due Period), the number and 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 that became Defaulted Home Loans, (B) that became Liquidated Home Loans, (C) that became Deleted Home Loans pursuant to Section 3.05 hereof as a result of such Fiscal Year and containing statement of profit and loss, a balance sheetDeleted Home Loans being Defective Home Loans, and statement (D) that became Deleted Home loans pursuant to Section 3.05 hereof as a result of cash flows such Deleted Home Loans being Defaulted Home Loans or a Home Loan in default or imminent default, including the foregoing amounts by loan type (i.e., Combination Loans, Home Improvement Loans, Debt Consolidation Loans and Purchase or Refinance Loans);
(xvi) from the Closing Date through the most current Due Period, the cumulative aggregate Principal Balance of Home Loans for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified as to scope each of audit of CEOC and its Subsidiaries and shall provide in substance that the following: (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 that became Liquidated Home Loans, and (B) that the audit by became Deleted Home Loans pursuant to Section 3.05 as a result of such Accountant Deleted Home Loans being in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificateforeclosure, executed by the chief financial officer default 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)imminent default;
(Bxvii) quarterly unaudited financial statementsthe scheduled principal payments and the principal prepayments received with respect to the Home Loans during the Due Period;
(xviii) the number of and aggregate principal balance of all Home Loans (both during the related Due Period and in aggregate since the Closing Date) repurchased or substituted pursuant to the Grantor Trust Agreement and Sections 3.05 or 4.09 hereof;
(xix) the number of Home Loans remaining in the Home Loan Pool;
(xx) the amount remaining in the FHA Insurance Coverage Reserve Account with respect to all FHA Loans and the Related Series Loans, consisting of a statement of profit and loss, a balance sheetif any, and statement the number and amount of cash flows claims 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 FHA Insurance filed and/or paid pursuant 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018)Section 4.09; 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 (ixxi) the SEC Principal Balance of each FHA Loan with respect to which the Servicer has determined 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 circumstances described in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, 4.09 that in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) below;
(iii) As to CEC:
(A) annual financial statements audited by CEC’s Accountant good faith in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEC, including the report thereon by such Accountant customary mortgage loan servicing practices that all amounts which shall be unqualified as it expects to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 receive with respect to such FHA Loans have been received.
(2) No later than five (5) Business Days before each Payment Date, the Facility Servicer shall prepare and distribute to the Depositor, the Grantor Trustee 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 as a result of such Deleted Home Loans being Defective Home Loans, from the Closing Date through the most current Due Period.
(3) No later than seven days following a repurchase or substitution pursuant to the Grantor Trust Agreement or Sections 3.05 or 4.09 hereof, the Servicer shall notify each Rating Agency of the aggregate principal balances of the Home Loans repurchased or substituted and (if applicable) the relevant Substitution Adjustment. All reports prepared by the Servicer of the withdrawals from and deposits in the Collection Account will be based in whole or in part upon the information provided to the Indenture Trustee by the Servicer, and the Indenture Trustee may fully rely upon and shall have no liability with respect to such information provided by the prior Lease Year (subject to 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 the 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 (or Manager) 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 Servicer shall prepare and direct the Indenture Trustee to distribute to each Person who at any improvements theretotime during the calendar year was a Noteholder, 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)(iv) and (v) 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. Such obligation of the Commencement Date;Indenture Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be provided by the Servicer to the Noteholders pursuant to any requirements of the Code as are in force from time to time.
(viid) Within three (3) Business Days of obtaining actual knowledge On each Payment Date, the Indenture Trustee shall forward to The Depository Trust Company and to the holders of the occurrence of Residual Interest a Tenant Event of Default (or copy 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 Payment Statement in respect of such Payment Date and a statement setting forth the Facility), a written notice amounts actually distributed to Landlord regarding the same, which notice shall include a detailed description such holders of the Tenant Event of Default (Residual Interest on such Payment Date, together with such other information as the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 Servicer shall prepare and direct the Indenture Trustee to distribute to each Person who at any time during the calendar year was a holder of a Residual Interest Instrument, if requested in writing by such Person, such information as they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 Residual Interest. Such obligation of the Facility;Indenture Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be provided by the Servicer to the holder of Residual Interest pursuant to any requirements of the Code as are in force from time to time.
(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 Servicer or its agent shall furnish to the Indenture Trustee, who in respect turn shall forward to each Noteholder and the holder of Bookings required pursuant to Section 22.7 Residual Interest, 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee MortgageNotes and the Residual Interest, which including Internal Revenue Service Forms 1099 (if necessary) and other similar reports that are required to be filed by the Servicer or its agent and the holder of Residual Interest, whether or not provided for herein, as shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix))necessary, reasonably cooperate with Landlord in providing information reasonable, or appropriate with respect to the PropertyNoteholders or the holders of the Residual Interest, 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;
(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, except otherwise with respect to the Existing Fee Mortgagepurposes of this Agreement, all such Disclosure Document reports or information to be provided by and in accordance with such applicable instructions and directions as the Noteholders or the holders of the Residual Interest may reasonably require.
(h) Reports and computer tapes furnished by the Servicer and the Indenture Trustee pursuant to this Agreement shall be deemed confidential and of proprietary nature, and 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 be copied or any information subject to bona fide confidentiality restrictions; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, distributed except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant purposes and requirements of this Agreement. No Person entitled to receive copies of such reports or tapes shall (I) be responsible use the information therein for the costs purpose of soliciting the customers of the Existing Fee Mortgagee in connection therewith to Transferor or the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord Servicer or for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared other 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 Landlthis Agreement.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Master Financial Asset Securitization Trust 1998-2)
Statements. Tenant (a) Not later than 12:00 noon, California time, on the fifth Business Day prior to each Distribution Date, the Servicer shall furnish or cause deliver to the Trustee by electronic modem a computer file containing the information called for by clauses (i) through (xxi) below as of the end of the preceding Due Period and such other information as the Trustee shall reasonably require. Not later than 12:00 noon, California time, on each Determination Date, the Trustee shall deliver to the Servicer, the Depositor and to the Certificate Insurer, 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 one Business Day prior to each Distribution Date the Trustee shall deliver a statement (the "Trustee's Remittance Report") containing the information set forth below with respect to such Distribution Date, which information shall be based upon the information furnished by the following to LandlordServicer upon which the Trustee shall conclusively rely without independent verification or calculation thereof:
(i) As to SPE Tenant: The Available Funds for each Certificate Group and each Class's Certificate Rate for the related Distribution Date;
(aii) Within ninety (90) days after the end The Class Principal Balance of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing statement Class of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Class A Certificates and the applicable Aggregate Class A Principal Balance for each Certificate Group as reported in the prior year Fiscal QuarterTrustee's Remittance Report pursuant to subclause (xi) below, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 Original Class Principal Balance of each Class 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);
(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 yearCut-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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowOff Date Pool Principal Balance;
(iii) As to CEC:
(A) annual financial statements audited by CEC’s Accountant in accordance with GAAP covering such Fiscal Year The number and containing statement Principal Balances of profit and loss, a balance sheet, and statement all Mortgage Loans that were the subject of cash flows for CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 Principal Prepayments during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowDue Period;
(iv) As soon as it is prepared and in no event later than sixty (60) days after The amount of all Curtailments that were received during the end of each Fiscal Year, a statement of Net Revenue with respect to the Facility with respect to the prior Lease Year (subject to 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 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 The principal portion of all or any portion of Monthly Payments 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 the 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 (or Manager) from (or to) any Gaming Authorities)Due Period;
(vi) The interest portion of all Monthly Payments received on the Mortgage Loans during the Due Period;
(vii) The amount of the Monthly Advances and the Compensating Interest payment to be made on the Determination Date;
(viii) The Class A Principal Distribution, the portion thereof to be distributed on each Class of Class A Certificates then entitled to distributions of principal, and the Class Interest Distribution to be distributed on each Class of Senior Certificates.
(ix) The amount of the Insured Payments, if any, to be made on the Distribution Date;
(x) The amount to be distributed to the Class R Certificateholders for the Distribution Date;
(xi) The Class Principal Balance of each Class of Class A Certificates and the Group Certificate Principal Balance for each Certificate Group after giving effect to the distribution to be made on the Distribution Date;
(xii) The weighted average remaining term to maturity of the Mortgage Loans and the weighted average Loan Rate;
(xiii) The Servicing Fee and the Premium Amount and Reimbursement Amount to be paid to the Certificate Insurer pursuant to Section 5.01;
(xiv) The amount of all payments or reimbursements to the Servicer pursuant to Sections 3.03(ii) and (vi);
(xv) The O/C Amount and the Specified O/C Amount for such Distribution Date;
(xvi) The amounts which are reimbursable to the Servicer or the Seller, as appropriate, pursuant to Section 5.01(a)(vi)(3) and the amount paid to Class R Certificateholders pursuant to Section 5.01(a)(vi)(7);
(xvii) The number of Mortgage Loans outstanding at the beginning and at the end of the related Due Period;
(xviii) The amount of Liquidation Loan Losses experienced during the preceding Due Period and the Loan Losses and the Cumulative Net Losses as a percentage of the Cut-Off Date Pool Principal Balance;
(xix) 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 more than 90 days delinquent; the number and Principal Balance of Mortgage Loans which are in foreclosure; and the number and Principal Balance of Mortgage Loans which are REO Property;
(xx) The amount of Class A-7 Basis Risk Carryover Amount distributed on such Distribution Date and any remaining Class A-7 Basis Risk Carryover Amount; and
(xxi) The Certificate Rates for the Class A-7 and Class S Certificates for such Distribution Date and the Class A-7 Formula Rate for the related and the following Interest Period. The Trustee shall forward such report to the Servicer, the Depositor, the Certificate Insurer, the Certificateholders, the Rating Agencies, Bloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) and Intex Solutions (at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the Distribution Date; provided, however that the Trustee shall remove the Premium Amount to be paid the Certificate Insurer from clause (xiii) of such report prior to submission of the report to Bloomberg and Intex Solutions. The Trustee may fully rely upon and shall have no liability with respect to information provided by the Servicer. The Servicer shall calculate all items in clauses (i) - (xxi) above. To the extent that there are inconsistencies between the telecopy of the Trustee's Remittance Report and the hard copy thereof, the Servicer may rely upon the latter. In the case of information furnished pursuant to subclauses (ii), (xi) and (xvi) 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 furnish to each Person who at any time during the calendar year was a Holder of depreciation and any improvements theretoa Senior 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 necessary to provide to such Person a statement containing the information set forth in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date;
subclauses (vii) Within three and (3xiii) Business Days of obtaining actual knowledge above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the occurrence of a Tenant Event of Default (or 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 occurrence 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 any facts or circumstances which, with the giving reports forwarded to the Holders 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 Senior Certificates in respect of such Distribution Date and a statement setting forth the Facility), a written notice 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which 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 the Code as from time to time in force.
(e) The Servicer and the Trustee shall furnish to each Certificateholder and to the Certificate Insurer (if requested in writing), during the term of this Lease;
(xviii) The monthly reporting required pursuant to Section 4.1 hereof; and
(xix) In connection with any Fee Mortgagee SecuritizationAgreement, Tenant shallsuch periodic, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except special or other reports or information, whether or not provided for herein, as shall be necessary, reasonable or appropriate with respect to the Existing Fee MortgageCertificateholder or the Certificate Insurer, which shall be at as the sole cost and expense of Tenant as provided in the final sentence of this clause (xix))case may be, reasonably cooperate with Landlord in providing information or otherwise with respect to the Propertypurposes 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 or the Certificate Insurer, as the case may be, may reasonably require; provided that the 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.
(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;
(B) review, re-review and, law or for the internal use of the Certificate Insurer and its counsel or to the extent accurateRating Agencies, approve (the Certificate Insurer's reinsurers, parent, regulators, liquidity providers and to the extent inaccurateauditors, 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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth Certificate Insurer shall attempt in good faith to cause such portions of any Disclosure Document approved by Tenant pursuant additional Persons to acknowledge in writing the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific dateforegoing restrictions, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant purposes and requirements of this Agreement. No Person entitled to receive copies of such reports or diskettes or files or lists of Certificateholders shall (I) be responsible use the information therein for the costs purpose of soliciting the customers of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord Seller or for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared other 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Delta Funding Corp /De/)
Statements. Tenant (a) Not later than 12:00 noon, California time, on the fifth Business Day prior to each Distribution Date, the Servicer shall furnish or cause deliver to the Trustee by electronic modem a computer file containing the information called for by clauses (i) through (xxi) below as of the end of the preceding Due Period and such other information as the Trustee shall reasonably require. Not later than 12:00 noon, California time, on each Determination Date, the Trustee shall deliver to the Servicer 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 one Business Day prior to each Distribution Date the Trustee shall deliver a statement (the "Trustee's Remittance Report") containing the information set forth below with respect to such Distribution Date, which information shall be based upon the information furnished by the following to LandlordServicer upon which the Trustee shall conclusively rely without independent verification or calculation thereof:
(i) As to SPE Tenant: (a) Within ninety (90) days after The Available Funds for each Certificate Group and each Class's Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 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 DateServicing Fee;
(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 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 the 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)preceding Due Period;
(viii) Such additional customary and reasonable financial information related to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end Class Principal Balance of each calendar month the following items as they pertain Class of Certificates after giving effect to 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 and entertainment operating metrics 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 (not including any contributions payments allocated to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, in the form attached hereto as Exhibit Iprincipal above;
(ix) The compliance certificatesthe Overcollateralization Amount and the Required Overcollateralization Amount as of the close of business on the Distribution Date, as and when required pursuant after giving effect to Section 4.3distributions of principal on such Distribution Date;
(x) The Annual Capital Budget as whether a Trigger Event has occurred and when required in Section 10.5is continuing;
(xi) The monthly revenue number and Capital Expenditure reporting required pursuant to Section 10.5(b)Principal Balances of all Mortgage Loans that were the subject of Principal Prepayments during the Due Period;
(xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary The amount of all leasing activity then taking place at Curtailments that were received during the FacilityDue 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 principal portion of all Monthly Payments received during the commencement of the Fiscal Year to which such operating budget relatesDue 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 interest portion of all Monthly Payments received on the Mortgage Loans during the Due Period;
(xv) The quarterly reporting in respect amount of Bookings required pursuant the Monthly Advances and the Compensating Interest payment to Section 22.7 of this Leasebe made on the Determination Date;
(xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3amount to be distributed to the Class R Certificateholders for the Distribution Date;
(xvii) Any notices or reporting required pursuant The weighted average remaining term to Article XXXII hereof or otherwise pursuant to any other provision maturity of this Leasethe Mortgage Loans and the weighted average Loan Rate;
(xviii) The monthly reporting required amount of all payments or reimbursements to the Servicer pursuant to Section 4.1 hereofSections 3.03(ii) and (vi);
(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 Loan Losses 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 more than 90 days delinquent; the number and Principal Balance of Mortgage Loans which are in foreclosure; and the number and Principal Balance of Mortgage Loans which are REO Property; and
(xixxxii) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy calculation of the representations made by Tenant to Landlord under Section 8.2 Cumulative Loss Event and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlthe
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Delta Funding Corp /De/)
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 SPE Tenant: (a) Within ninety (90) days after Available Funds and each Class' Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 Required Overcollateralization Amount as of the Facility)close of business on the Distribution Date, after giving effect to distributions of principal on such Distribution Date;
(x) whether a written notice to Landlord regarding Cumulative Loss Event or a Delinquency Event has occurred and is continuing and the same, which notice shall include a detailed description calculation thereof;
(xi) the number and Principal Balances of 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 Tenant Event 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 Default 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 report to the FacilityServicer, Tenantthe Seller, CEOCthe Certificate Insurer, CEC the Certificateholders, the Rating Agencies, Bloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) and their Affiliates which shall be limited to balance sheets and income statements Intex Solutions (andat ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, without limitation▇▇▇▇▇▇▇, all information concerning Tenant▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, CEOC, CEC and any of their Affiliates, respectively, or Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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 (iii) of this parenthetical), as is reasonably necessary to the extent reasonably requested by provide to 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;
(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 Person 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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that statement containing the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause subclauses (Biii) does not at the time furnished contain any untrue statement of any material fact and (iiiv) certifying as to the accuracy above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the representations made by Tenant Trustee shall be deemed to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) have been satisfied to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) substantially comparable information 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 Landlsuch other information as the Trustee deems necessary or appropriate.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Renaissance Home Equity Loan Asset-BKD Cert Series 2002-1)
Statements. Tenant (a) On or before 1:00 p.m. New York Time on ---------- each Determination Date, the Servicer shall furnish deliver or cause a Subservicer to deliver to the Certificate Administrator by electronic transmission in a computer-readable format acceptable to the Certificate Administrator, monthly servicer accounting reports sufficient for the Certificate Administrator to perform its responsibilities pursuant to this Agreement. The monthly servicer accounting reports shall contain information as to each Home Equity Loan as of the close of business immediately prior to such Determination Date and such other information as the Certificate Administrator shall reasonably require. Such information for each Home Equity Loan shall include among other items, but not be furnished limited to, ending Stated Principal Balance, Advances (separately stated for principal and interest), Realized Losses, the following date the last Scheduled Monthly Payment was paid, Principal Prepayments, Scheduled Monthly Payments of principal and interest, Mortgage Rates, and Prepayment Interest Shortfalls. Not later than 12:00 noon New York time two Business Days prior to Landlord:the Distribution Date, the Certificate Administrator shall prepare and deliver to the Trustee by telecopy, and hard copy, a statement (the "Remittance Report") containing the information set forth below with respect to such Distribution Date.
(i) As the amount of the related distribution to SPE Tenant: Holders of the Class A Certificates allocable to principal, separately identifying (aA) Within ninety (90) days after the end aggregate amount of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheetany Principal Prepayments included therein, and statement (B) the aggregate of cash flows for SPE Tenant, plus a calculation all scheduled payments of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 included therein;
(ii) As the amount of such distribution 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);
(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 Holders of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); and
(C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant, which information shall be limited Class A Certificates allocable 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 amount of any Insured Amount included in the amounts distributed to CEC:
(A) annual financial statements audited by CEC’s Accountant in accordance with GAAP covering the Holders of Class A Certificates on such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 Carry-Forward Amount and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to the Facility with respect to the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)any Basis Risk Carryover Amount;
(v) Prompt Notice the Class Certificate Principal Balance of the Class A Certificates after giving effect to Landlord the distribution of any actionprincipal made, proposal or investigation by any agency or entityand the principal portion of Realized Losses, or complaint if any, allocated with respect 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 the 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 (or Manager) from (or to) any Gaming Authorities)Distribution Date;
(vi) the Pool Stated Principal Balance for the following Distribution Date;
(vii) the Required Subordinated Amount and the Subordinated Amount as of such Distribution Date;
(viii) the Pass-Through Rate for the Class A Certificates for such Distribution Date;
(ix) the amount of Advances by the Servicer or the Trustee included in the distribution to the Certificates on such Distribution Date;
(x) the number of Home Equity Loans and the weighted average of the Mortgage Rates for the Home Equity Loans outstanding as of the preceding Determination Date;
(xi) the number and aggregate principal amounts of delinquent Home Equity Loans (A) delinquent (exclusive of Home Equity Loans in foreclosure) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 plus days in each case as of the close of business on the Business Day preceding the Determination Date in the month in which such Distribution Date occurs;
(xii) the total number and aggregate principal balance of any Home Equity Loans in foreclosure and any REO Properties as of the close of business on the Business Day preceding the Determination Date in the month in which such Distribution Date occurs;
(xiii) the aggregate of all Realized Losses, relating to Liquidated Loans;
(xiv) the amount of any Subordination Deficiency Amount after giving effect to the distribution of principal on such Distribution Date;
(xv) the unpaid principal balance of any Home Equity Loan as to which the Servicer has determined not to foreclose because it believes the related Mortgaged Property may be contaminated with or affected by hazardous wastes or hazardous substances;
(xvi) the amount of the Servicing Fee and the Administration Fee paid (and not previously reported) with respect to the related Distribution Date and the amount by which the Servicing Fee has been reduced by any Prepayment Interest Shortfalls for the related Distribution Date; and
(xvii) the number and Stated Principal Balance of the Home Equity Loans which have been modified pursuant to Section 3.01(f) during the related Due Period and in the aggregate since the Closing Date. The Trustee shall forward such report to the Certificate Insurer, the Certificateholders and the Rating Agencies on the Distribution Date. The Trustee and the Certificate Administrator may fully rely upon and shall have no liability with respect to information provided by the Servicer. To the extent that there are inconsistencies between the telecopy of the Remittance Report and the hard copy thereof, the Trustee may rely upon the latter. 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 of depreciation and Trustee shall furnish to each Person who at any improvements theretotime during the calendar year was a Class 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 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 forward 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 Class A Certificateholders in respect of such Distribution Date and a statement setting forth the Facility), a written notice amounts actually distributed to Landlord regarding the same, which notice shall include a detailed description of Residual 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which 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 the Code as from time to time in force.
(e) The Servicer and the Trustee shall furnish to each Certificateholder (if requested in writing), during the term of this Lease;
(xviii) The monthly reporting required pursuant to Section 4.1 hereof; and
(xix) In connection with any Fee Mortgagee SecuritizationAgreement, Tenant shallsuch periodic, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except special, or other reports or information, whether or not provided for herein, as shall be necessary, reasonable, or appropriate with respect to the Existing Fee MortgageCertificateholder, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information or otherwise with respect to the Propertypurposes 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 (iif requested in writing) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictionsas the Certificateholder may reasonably require; provided, however, that the information described on Exhibit M 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 tapes 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;
(B) review, re-review and, law or to the extent accurateRating Agencies, approve (and the Depositor or the Certificate Insurer. 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 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, purpose except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information as set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Norwest Asset Acceptance Corp)
Statements. Tenant (a) Not later than 1:00 p.m., California time, on the fifth Business Day prior to each Distribution Date, the Servicer shall furnish or cause deliver to the Trustee by electronic modem a computer file containing the information called for by clauses (i) through (xxiii) below as of the end of the preceding Due Period and such other information as the Trustee shall reasonably require. Not later than 1:00 p.m., California time, on each Determination 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 one Business Day prior to each Distribution Date the Trustee shall deliver a statement (the "Trustee's Remittance Report") containing the information set forth below with respect to such Distribution Date, which information shall be based upon the information furnished by the following to LandlordServicer upon which the Trustee shall conclusively rely without independent verification or calculation thereof:
(i) As to SPE Tenant: (a) Within ninety (90) days after The Available Funds for each Certificate Group and each Class's Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass Interest Carryover Shortfall remaining;
(iv) As soon as it is prepared and the amount of the distribution set forth in no event later than sixty paragraph (60i) days after the end of each Fiscal Year, a statement of Net Revenue with respect to the Facility with respect to the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof above in respect of the periodic determination of the Variable Rent hereunder)principal;
(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 the 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 (or Manager) 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 the each Class of Certificates after giving of notice or the passage of time would ripen into a Tenant Event of Default effect to payments allocated to principal above;
(ix) each Overcollateralization Amount and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect each Required Overcollateralization Amount as of the Facility)close of business on the Distribution Date, a written notice after giving effect to Landlord regarding distributions of principal on such Distribution Date;
(x) the same, which notice shall include a detailed description amount 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 be made on such Tenant Event of Default (or such facts or circumstances);
(viii) Such additional customary and reasonable financial information related to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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 10.5Distribution Date;
(xi) The monthly revenue number and Capital Expenditure reporting required pursuant to Section 10.5(b)Principal Balances of all Mortgage Loans in each Loan Group that were the subject of Principal Prepayments during the Due Period;
(xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary The amount of all leasing activity then taking place at Curtailments in each Loan Group that were received during the FacilityDue Period;
(xiii) Operating budget for The principal portion of all Monthly Payments in each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following Loan Group received during the commencement of the Fiscal Year to which such operating budget relatesDue 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 The interest portion of all Monthly Payments in each SPE Tenant as may be reasonably requested by LandlordLoan Group received on the Mortgage Loans during the Due Period;
(xv) The quarterly reporting in respect For each Certificate Group, the amount of Bookings required pursuant the Monthly Advances and the Compensating Interest payment to Section 22.7 of this Leasebe made on the Determination Date;
(xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3amount to be distributed to the Class R Certificateholders for the Distribution Date;
(xvii) Any notices or reporting required pursuant The weighted average remaining term to Article XXXII hereof or otherwise pursuant to any other provision maturity of this Leasethe Mortgage Loans in each Loan Group and the weighted average Loan Rate;
(xviii) The monthly reporting required amount of all payments or reimbursements to the Servicer pursuant to Section 4.1 hereofSections 3.03(ii) and (vi);
(xix) The number of Mortgage Loans in each Loan Group outstanding at the beginning and at the end of the related Due Period;
(xx) For each Certificate Group, the amount of Liquidation Loan Losses experienced during the preceding Due Period and the Loan Losses 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 more days delinquent (including the number and Principal Balance of Mortgage Loans which are in foreclosure and the number and Principal Balance of Mortgage Loans which are REO Property);
(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; and
(xixxxiv) In connection with any Fee Mortgagee SecuritizationFor each Pre-Funding Distribution Date, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect remaining Allocated Pre-Funded Amount. The Trustee shall forward such report to the Existing Fee MortgageServicer, which shall be the Seller, the Certificate Insurer, the Certificateholders, the - 95 - Rating Agencies, Bloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) and Intex Solutions (at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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 provided by the Servicer. The Servicer shall not be so excluded even if such information qualifies within calculate all items in clauses (i) - (xxiv) above. To the extent that there are inconsistencies between the telecopy of the Trustee's Remittance Report and the hard copy thereof, the Servicer may rely upon the latter. In the case of information furnished pursuant to subclauses (ii), (ii) or (iii) of this parenthetical), (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.
(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 extent reasonably calendar year was a Holder of a Regular Certificate, if requested in writing 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;
(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, except with respect to the Existing Fee MortgagePerson, 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 as is reasonably necessary to bona fide confidentiality restrictions; and
(C) with respect provide to the Existing Fee Mortgage, deliver such Person a certification to Landlord (i) certifying that statement containing the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause subclauses (Biii) does not at the time furnished contain any untrue statement of any material fact and (iiiv) certifying as to the accuracy above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the representations made by Tenant Trustee shall be deemed to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any such representation is made 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 a specific date, the reports forwarded to the Holders of the Regular Certificates in which case such representation is accurate and complete in all material respects as respect of such specific dateDistribution Date and a statement setting forth the amounts actually distributed to the Class R Certificateholders on 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, and (y) 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 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 each Certificateholder and to the Certificate Insurer (if requested in writing), during the term of this Agreement, such representations require qualification on 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 to the Certificate Insurer or otherwise with respect to the purposes of this Agreement, all such datereports or information to be provided by and in accordance with such applicable instructions and directions (if requested in writing) as the Certificateholder or the Certificate Insurer may reasonably require; provided that the Servicer and the Trustee shall be entitled to be reimbursed by such Certificateholder or the Certificate Insurer for their respective fees and actual expenses associated with providing such reports, setting forth if such qualifications reports are not generally produced in reasonable detail 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 “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization proprietary nature, and shall not be copied or distributed except to the extent required by law or for the internal use of the Certificate Insurer and its counsel or to the Rating Agencies, the Certificate Insurer's reinsurers, parent, regulators, liquidity providers and auditors, provided that the Certificate Insurer shall attempt in good faith to cause such additional Persons to acknowledge in writing the foregoing restrictions, and in connection with the Existing Fee Mortgage, Tenant purposes and requirements of this Agreement. No Person entitled to receive copies of such reports or diskettes or files or lists of Certificateholders shall (I) be responsible use the information therein for the costs purpose of soliciting the customers of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord Seller or for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared other 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Delta Funding Corp /De/)
Statements. Tenant (a) Not later than 12:00 noon, Maryland time, on the fifth Business Day prior to each Distribution Date, the Servicer shall furnish or cause deliver to the Trustee and Certificate Insurer by electronic means a computer file containing the information called for by clauses (i) through (xxiv) 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 one Business Day prior to each Distribution Date the Trustee shall deliver a statement (the "Trustee's Remittance Report") containing the information set forth below with respect to such Distribution Date, which information shall be based upon the information furnished by the following to LandlordServicer upon which the Trustee shall conclusively rely without independent verification or calculation thereof:
(i) As to SPE Tenant: (a) Within ninety (90) days after The Available Funds for each Certificate Group and each Class's Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 Required Overcollateralization Amount as of the Facility)close of business on the Distribution Date, a written notice after giving effect to Landlord regarding distributions of principal on such Distribution Date;
(x) the same, which notice shall include a detailed description amount 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 be made on such Tenant Event of Default (or such facts or circumstances);
(viii) Such additional customary and reasonable financial information related to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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 10.5Distribution Date;
(xi) The monthly revenue number and Capital Expenditure reporting required pursuant to Section 10.5(b)Principal Balances of all Mortgage Loans in each Loan Group that were the subject of Principal Prepayments during the Due Period;
(xii) Together with the monthly reporting required pursuant to the preceding clause (xi), an updated rent roll and a summary The amount of all leasing activity then taking place at Curtailments in each Loan Group that were received during the FacilityDue Period;
(xiii) Operating budget for The principal portion of all Monthly Payments in each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55) days following Loan Group received during the commencement of the Fiscal Year to which such operating budget relatesDue 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 The interest portion of all Monthly Payments in each SPE Tenant as may be reasonably requested by LandlordLoan Group received on the Mortgage Loans during the Due Period;
(xv) The quarterly reporting in respect For each Certificate Group, the amount of Bookings required pursuant the Monthly Advances and the Compensating Interest payment to Section 22.7 of this Leasebe made on the Determination Date;
(xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3amount to be distributed to the Class R Certificateholders for the Distribution Date;
(xvii) Any notices or reporting required pursuant The weighted average remaining term to Article XXXII hereof or otherwise pursuant 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 any other provision of this Leasethe Distribution Date;
(xviii) The monthly reporting required amount of all payments or reimbursements to the Servicer pursuant to Section 4.1 hereofSections 3.03(ii) and (vi);
(xix) The 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 Loan Losses 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 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) 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; and
(xixxxiv) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request The amount of Landlord:
(A) at the sole cost and expense of Landlord (except with respect Class B Cap Carryover distributed to the Existing Fee Mortgage, which Class B Certificates and the amount of Class B Cap Carryover remaining. The Trustee shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect forward such report to the PropertyServicer, Tenant or its Affiliates the Seller, the Certificate Insurer, the Certificateholders, the Rating Agencies, Bloomberg (excluding at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) and Intex Solutions (iat ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) any material non-public information, (ii) any Competitively Sensitive Information, and (iii) any information subject to bona fide confidentiality restrictionson the Distribution 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 provided by the Servicer. The Servicer shall not be so excluded even if such information qualifies within calculate all items in clauses (i) - (xxiv) above. To the extent that there are inconsistencies between the telecopy of the Trustee's Remittance Report and the hard copy thereof, the Servicer may rely upon the latter. In the case of information furnished pursuant to subclauses (ii), (ii) or (iii) of this parenthetical), (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.
(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 extent reasonably calendar year was a Holder of a Regular Certificate, if requested in writing 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;
(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, except with respect to the Existing Fee MortgagePerson, 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 as is reasonably necessary to bona fide confidentiality restrictions; and
(C) with respect provide to the Existing Fee Mortgage, deliver such Person a certification to Landlord (i) certifying that statement containing the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause subclauses (Biii) does not at the time furnished contain any untrue statement of any material fact and (iiiv) certifying as to the accuracy above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the representations made by Tenant Trustee shall be deemed to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any such representation is made 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 a specific date, the reports forwarded to the Holders of the Regular Certificates in which case such representation is accurate and complete in all material respects as respect of such specific dateDistribution Date and a statement setting forth the amounts actually distributed to the Class R Certificateholders on 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, and (y) 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 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 each Certificateholder and to the Certificate Insurer (if requested in writing), during the term of this Agreement, such representations require qualification on 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 to the Certificate Insurer or otherwise with respect to the purposes of this Agreement, all such datereports or information to be provided by and in accordance with such applicable instructions and directions (if requested in writing) as the Certificateholder or the Certificate Insurer may reasonably require; PROVIDED that the Servicer and the Trustee shall be entitled to be reimbursed by such Certificateholder or the Certificate Insurer for their respective fees and actual expenses associated with providing such reports, setting forth if such qualifications reports are not generally produced in reasonable detail 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 “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization proprietary nature, and shall not be copied or distributed except to the extent required by law or for the internal use of the Certificate Insurer and its counsel or to the Rating Agencies, the Certificate Insurer's reinsurers, parent, regulators, liquidity providers and auditors, PROVIDED that the Certificate Insurer shall attempt in good faith to cause such additional Persons to acknowledge in writing the foregoing restrictions, and in connection with the Existing Fee Mortgage, Tenant purposes and requirements of this Agreement. No Person entitled to receive copies of such reports or diskettes or files or lists of Certificateholders shall (I) be responsible use the information therein for the costs purpose of soliciting the customers of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord Seller or for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared other 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Delta Funding Corp /De/)
Statements. Tenant (a) Not later than 12:00 noon, __________ time, on the fifth Business Day prior to each Distribution Date, the Master Servicer shall furnish or cause deliver to the Trustee by electronic modem a computer file containing the information called for by clauses (i) through (xxi) below as of the end of the preceding Due Period and such other information as the Trustee shall reasonably require. Not later than 12:00 noon, __________ time, on each Determination Date, the Trustee shall deliver to the Master Servicer, the Seller, the Representative and to the Certificate Insurer, 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 one Business Day prior to each Distribution Date the Trustee shall deliver a statement (the "Trustee's Remittance Report") containing the information set forth below with respect to such Distribution Date, which information shall be based upon the information furnished by the following to LandlordMaster Servicer upon which the Trustee shall conclusively rely without independent verification or calculation thereof:
(i) As to SPE Tenant: The Available Funds for the related Distribution Date;
(aii) Within ninety (90) days after the end The Class Principal Balance of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing statement Class of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Class A Certificates and the applicable Aggregate Class A Principal Balance as reported in the prior year Fiscal QuarterTrustee's Remittance Report pursuant to subclause (xi) below, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 Original Class Principal Balance of each Class 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);
(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 yearCut-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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowOff Date Pool Principal Balance;
(iii) As to CEC:
(A) annual financial statements audited by CEC’s Accountant in accordance with GAAP covering such Fiscal Year The number and containing statement Principal Balances of profit and loss, a balance sheet, and statement all Home Equity Loans that were the subject of cash flows for CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 Principal Prepayments during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowDue Period;
(iv) As soon as it is prepared and in no event later than sixty (60) days after The amount of all Curtailments that were received during the end of each Fiscal Year, a statement of Net Revenue with respect to the Facility with respect to the prior Lease Year (subject to 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 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 The principal portion of all or any portion of Monthly Payments 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 the 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 (or Manager) from (or to) any Gaming Authorities)Due Period;
(vi) The interest portion of all Monthly Payments received on the Home Equity Loans during the Due Period;
(vii) The amount of the Monthly Advances and the Compensating Interest payment to be made on the Determination Date;
(viii) The Class A Principal Distribution, the portion thereof to be distributed on each Class of Class A Certificates then entitled to distributions of principal, and the Class Interest Distribution to be distributed on each Class of Class A Certificates;
(ix) The amount of the Insured Payments, if any, to be made on the Distribution Date;
(x) The amount to be distributed to the Class R Certificateholders for the Distribution Date;
(xi) The Class Principal Balance of each Class of Class A Certificates and the Aggregate Class A Principal Balance after giving effect to the distribution to be made on the Distribution Date;
(xii) The weighted average remaining term to maturity of the Home Equity Loans and the weighted average Loan Rate;
(xiii) The Servicing Fee and the Premium Amount and Reimbursement Amount to be paid to the Certificate Insurer pursuant to Section 5.01;
(xiv) The amount of all payments or reimbursements to the Master Servicer pursuant to Sections 3.03(ii) and (vi);
(xv) The O/C Amount and the Specified O/C Amount for such Distribution Date;
(xvi) The amounts which are reimbursable to the Master Servicer or the Seller, as appropriate, pursuant to Section 5.01(a)(ii)(2) and the amount paid to Class R Certificateholders pursuant to Section 5.01(a)(ii)(4);
(xvii) The number of Home Equity Loans outstanding at the beginning and at the end of the related Due Period;
(xviii) The amount of Liquidation Loan Losses experienced during the preceding Due Period and the Loan Losses and the Cumulative Net Losses as a percentage of the Cut-Off Date Pool Principal Balance; and
(xix) As of the end of the preceding calendar month, the number and Principal Balance of Home Equity Loans which are 30-59 days delinquent; the number and Principal Balance of Home Equity Loans which are 60-89 days delinquent; the number and Principal Balance of Home Equity Loans which are more than 90 days delinquent; the number and Principal Balance of Home Equity Loans which are in foreclosure; and the number and Principal Balance of Home Equity Loans which are REO Property. The Trustee shall forward such report to the Master Servicer, the Seller, the Certificate Insurer, the Representative, the Certificateholders, the Rating Agencies, [Bloomberg (at 499 ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇tention: ____________) and [Intex Solutions (at 35 -71- 77 H▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇tention: ______________)] on the Distribution Date; provided, however that the Trustee shall remove the Premium Amount to be paid the Certificate Insurer from clause (xiii) of such report prior to submission of the report to [Bloomberg and Intex Solutions]. The Trustee may fully rely upon and shall have no liability with respect to information provided by the Master Servicer. The Master Servicer shall calculate all items in clauses (i) - (xix) above. To the extent that there are inconsistencies between the telecopy of the Trustee's Remittance Report and the hard copy thereof, the Master Servicer may rely upon the latter. In the case of information furnished pursuant to subclauses (ii), (xi) and (xvi) 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 furnish to each Person who at any time during the calendar year was a Holder of depreciation and any improvements theretoa Class A 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 necessary to provide to such Person a statement containing the information set forth in accordance with the fixed asset methodology for propco-opco separation used as of the Commencement Date;
subclauses (vii) Within three and (3xiii) Business Days of obtaining actual knowledge above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the occurrence of a Tenant Event of Default (or 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 occurrence 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 any facts or circumstances which, with the giving reports forwarded to the Holders 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 Class A Certificates in respect of such Distribution Date and a statement setting forth the Facility), a written notice 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which Trustee shall be delivered deemed 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) have been satisfied to the extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Trustee pursuant to any such representation is made requirements of the Code as from time to time in force.
(e) The Master Servicer and the Trustee shall furnish to each Certificateholder and to the Certificate Insurer (if requested in writing), during the term of this Agreement, such
(f) Reports and computer diskettes or files furnished by the Master Servicer pursuant to this Agreement shall be deemed confidential and of a specific date, in which case such representation is accurate and complete in all material respects as of such specific dateproprietary nature, and (y) shall not be copied or distributed except to the extent required by law or for the internal use of the Certificate Insurer and its counsel or to the Rating Agencies, the Seller, Representative or any Originator, the Certificate Insurer's reinsurers, parent, regulators, liquidity providers and auditors, provided that the Certificate Insurer shall attempt in good faith to cause such representations require qualification on such dateadditional Persons to acknowledge in writing the foregoing restrictions, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization and in connection with the Existing Fee Mortgage, Tenant purposes and requirements of this Agreement. No Person entitled to receive copies of such reports or diskettes or files or lists of Certificateholders shall (I) be responsible use the information therein for the costs purpose of soliciting the customers of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord Representative or any Originator or for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared other 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Avco Abs Receivables Corp)
Statements. Tenant shall furnish or cause to be furnished the following to Landlord:
(i) As to SPE Tenant: (a) Within ninety The Sponsor shall prepare and deliver a settlement statement (90the “Statement”) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee RequirementSupplier, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 month in the form attached hereto as Exhibit DTerm that is the subject of the Statement (the “Settlement Month”), and such additional customary and reasonable financial information setting out the basis for the Monthly Payment with respect to such fixed assets constituting Leased Property the Settlement Month, as is reasonably requested well as the basis for any other payments owing under this Agreement by Landlord, it being understood that Tenant either Party to the other in the Settlement Month. A Statement may classify any asset additions in accordance with be delivered by the fixed asset methodology for propco-opco separation used as Sponsor to the Supplier by facsimile or electronic means and shall include the reference number assigned to this Agreement by the Sponsor and a description of the Commencement Date;components of the Monthly Payment and other payments, as described in this Agreement, including Section 4.2 as applicable, owing to the Supplier for the Settlement Month.
(viib) Within three (3) Business Days of obtaining actual knowledge The Supplier shall, promptly following receipt from the System Operator or LDC, as applicable, of the occurrence necessary information to calculate the Regulatory Charge Credit in respect of a Tenant Event Settlement Month, forward such information to the Sponsor, along with a draft calculation of Default the Regulatory Charge Credit in the Prescribed Form.
(c) The Sponsor’s calculation of the Regulatory Charge Credit shall be included in the Statement for the Settlement Month in which all information reasonably required by the Sponsor to calculate the Regulatory Charge Credit has been received by the Sponsor, and shall be paid on the Payment Date corresponding to such Statement. The amount of the Regulatory Charge Credit that is due on a given Payment Date shall be added to (or of subtracted from, as the occurrence of any facts or circumstances whichcase may be), 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 applicable Monthly Payment, except in respect of the Facility), a written notice to Landlord regarding final payment(s) of the sameRegulatory Charge Credit, which notice shall include a detailed description of may occur after the Tenant Event of Default (or such facts or circumstances) and the actions Tenant last Monthly Payment has taken or shall takebeen made. For greater certainty, if any, to remedy such Tenant Event of Default (or such facts or circumstances);
(viii) Such additional customary and reasonable financial information related to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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 the Sponsor to calculate the extent required Regulatory Charge Credit has not been received by Section 31.3. Without limitation of the foregoing, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25) days after the end of each calendar month a given Settlement Month, the following items as they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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 payment 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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 Regulatory Charge Credit shall not be so excluded even if made until the Payment Date corresponding the Settlement Month in which all 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific datehas been received, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant no interest shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlaccrue thereon.
Appears in 1 contract
Sources: Energy Storage Facility Agreement
Statements. Tenant (a) On each Distribution Date, the Trustee shall furnish prepare and make available to each Holder of the Regular Certificates, the Master Servicer, the Class I-A4 Insurer, the NIMS Insurer, the indenture trustee under the Indenture and the Rating Agencies, and two Business Days prior to each Distribution Date, the Trustee shall prepare and make available to the Swap Counterparty and any designee of the Swap Counterparty, 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 Master Servicer, the Cap Provider or cause the Swap Counterparty 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 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), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each amount of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, 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 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 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31allocable to interest, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 by Loan Group 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 the Facility with respect related Due Period and such other customary information as the Trustee deems necessary or desirable, or which a Certificateholder reasonably requests, to the prior Lease 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 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 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 the 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 (or Manager) from (or to) any Gaming Authorities)Distribution Date;
(vi) the aggregate amount of Advances for the related Due Period, the amount of unrecovered Advances (after giving effect to Advances made on the Distribution Date) outstanding and the amount of Nonrecoverable Advances for such Distribution Date;
(vii) the 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;
(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) 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 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) by Loan Group and in the aggregate, 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 Mezzanine Certificates, the Class B Certificates and the Class C Certificates, after giving effect to the distributions made on such Distribution Date (separately identifying any reduction thereof due to the receipt of Insured Payments in respect of principal in the case of the Class I-A4 Certificates), 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 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 and the Class B Certificates for such Distribution Date;
(xvii) 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 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 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;
(xx) the Trustee Fee on such Distribution Date;
(xxi) whether a Stepdown Date, a Trigger Event, a Sequential Trigger Event or a Group II Sequential Trigger Event has occurred;
(xxii) the Available Funds;
(xxiii) the respective Pass-Through Rates applicable to the Class A Certificates, the Mezzanine 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 Mezzanine Certificates and the Class B Certificates for the immediately succeeding Distribution Date;
(xxiv) by Loan Group and in the aggregate, the Principal Balance of Mortgage Loans repurchased by the Seller;
(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 each of the Cap Agreements;
(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 Swap Counterparty Payment, the Swap Fee Amount, the unpaid Swap Termination Payment payable by the Trust, the unpaid Swap Termination Payment payable by the Swap Counterparty, the Swap Termination Payment payable by the Trust paid on such Distribution Date, the Swap Termination Payment payable by the Swap Counterparty paid on such Distribution Date and the Swap Reimbursement Amount for such Distribution Date and any unpaid Gross Swap Reimbursement Amount and Swap Fee Amounts from prior Distribution Dates;
(xxxii) the Group I Final Maturity Reserve Amount, the Group II 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 and on the earlier of the Distribution Date in November 2035 and the termination of the Trust Fund, the amount distributed to each Class of the Certificates from the Final Maturity Reserve Account;
(xxxiii) with respect to each Mortgage Loan prepaid in full or in part during the related Prepayment Period, whether the Prepayment Charge is required with respect to such Mortgage Loan, the amount of such Prepayment Charge and the amount actually collected with respect to such Prepayment Charge;
(xxxiv) the amount of any draw to be made on the Class I-A4 Policy for such Distribution Date; and
(xxxv) all amounts paid to the Class I-A4 Insurer in respect of the Class I-A4 Premiums and in respect of the Class I-A4 Reimbursement Amount 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 Master Servicer, the Class I-A4 Insurer, the NIMS Insurer, the Cap Provider, 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 ▇-▇▇▇-▇▇▇-▇▇▇▇. 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 the Class I-A4 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 writing by the form attached hereto as Exhibit DClass I-A4 Insurer or 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 such Distribution Date with such other information as the Facility), a written notice to Landlord regarding 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 each Person who at any time during the calendar year was a Holder of a Residual Certificate, if requested in writing by such Person, such information as they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 a Residual Certificate. Such obligation of the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which Trustee shall be delivered deemed 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) have been satisfied to the extent that substantially comparable information shall be prepared and furnished to Certificateholders by the Trustee pursuant to any such representation is made requirements of the Code as from time to time in force.
(e) On each Distribution Date the Trustee shall provide Bloomberg Financial Markets, L.P. (“Bloomberg”) CUSIP level factors for each Class of a specific date, in which case such representation is accurate and complete in all material respects Certificates as of such specific dateDistribution Date, using a format and (y) media mutually acceptable to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, Trustee and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlBloomberg.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Long Beach Mortgage Loan Trust 2005-Wl3)
Statements. Tenant shall furnish or cause to be furnished the following statements to Landlord:
(i) As to SPE Tenant: Within sixty-five (a) Within ninety (9065) days after the end of each Tenant Parent’s Fiscal Year Years (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b2016) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing or concurrently with the Fiscal Quarter ending March 31filing by ▇▇▇▇▇▇’s Parent of its annual report on Form 10-K with the SEC, 2018), SPE whichever is earlier: (x) Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP Parent’s Financial Statements; (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 (2y) a certificate, executed by the chief financial officer or treasurer of CEOC the Tenant’s Parent (a) certifying that no Tenant Event of Default default has occurred under this Master Lease or, if such a Tenant Event of Default default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all thereto and (b) setting forth the calculation of which shall be provided within ninety (90) days after the end financial covenants set forth in Section 23.3 hereof in reasonable detail as of each such Fiscal Year (commencing with the Fiscal Year ending December 31, 20172016);
; and (Bz) 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 report with respect thereto, and (B) certifying that such to Tenant’s Parent’s 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); and
(C) such additional information and unaudited quarterly financial information concerning the Leased Property and from Tenant’s Parent’s accountants, 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to going concern and scope of audit of CEC Tenant’s Parent and its Subsidiaries (excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date of such audit or any projected financial performance or covenant default in any Material Indebtedness or this Master Lease in such twelve month period) and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC Tenant’s Parent 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 examination by CECTenant’s Accountant Parent’s accountants in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety generally accepted auditing standards;
(90ii) Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of the Tenant’s Parent’s Fiscal Year (commencing with the Fiscal Year fiscal quarter ending December 31June 30, 2017);
(B2016) or concurrently with the filing by ▇▇▇▇▇▇’s Parent of its quarterly unaudited financial statementsreport on Form 10-Q with the SEC, consisting of a statement of profit and losswhichever is earlier, a balance sheet, and statement copy of cash flows ▇▇▇▇▇▇’s Parent’s Financial Statements for CECsuch period, together with a certificate, executed by the chief financial officer or treasurer of CEC Tenant’s Parent (i) certifying that no default has occurred or, if such a default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth the calculation of the financial covenants set forth in Section 23.3 hereof in reasonable detail as of such quarter, to the extent one complete Test Period has been completed which has commenced following the date of this Master Lease and (iii) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC Tenant’s Parent 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(Ciii) Promptly following ▇▇▇▇▇▇▇▇’s request from time to time, (a) five-year forecasts of Tenant’s income statement and balance sheet covering such quarterly and annual periods as may be reasonably requested by Landlord, and in a format consistent with Tenant Parent’s quarterly and annual financial statements filed with the SEC, and such additional financial information and projections as may be reasonably requested by Landlord in connection with syndications, private placements, or public offerings of GLP’s or Landlord’s debt securities or loans or equity or hybrid securities and (b) 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, Tenant as Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP may require for any its ongoing filings with or reports to (i) the SEC under both the Securities Act and the Securities Exchange ActAct of 1934, as amended, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP during the Term of this Master Lease, (ii) the Internal Revenue Service (including in respect of Landlord REITGLP’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo GLP or Landlord REIT its Subsidiaries subject to Section 23.1(c) below);
(iv) As soon as it is prepared and in no event later than sixty Within thirty-five (6035) days after the end of each Fiscal Yearcalendar month, a copy of Tenant’s income statement for such month and ▇▇▇▇▇▇’s balance sheet as of Net Revenue the end of such month (which may be subject to quarterly and year-end adjustments and the absence of footnotes); provided, however, that with respect to each calendar quarter, Tenant shall provide such financial reports for the Facility with respect to final month thereof as soon as is reasonably practicable following the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect closing of the periodic determination of books for such month and in sufficient time so that Landlord or its Affiliate is able to include the Variable Rent hereunderoperational results for the entire quarter in its current Form 10-Q or Form 10-K (or supplemental report filed in connection therewith);
(v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity 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 the 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 (or Manager) from (or to) any Gaming Authorities)Property;
(vi) Within ten As soon as it is prepared and in no event later than sixty (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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (2560) days after the end of each calendar month the following items as they pertain to SPE Tenant: (A) Fiscal Year, a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room and entertainment operating metrics for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses capital and operating income (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant Facility for each that Fiscal Year, which shall ; and
(vii) Tenant further agrees to provide the financial and operational reports to be delivered to Landlord no later than fifty-five (55under this Master Lease in such electronic format(s) 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 reasonably be reasonably possible), such further detailed information reasonably available required by Landlord from time to Tenant with respect time in order 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, facilitate ▇▇▇▇▇▇▇▇’s internal financial 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact reporting database and (ii) certifying as permit Landlord to the accuracy of the representations made by Tenant calculate any rent, fee or other payments due under Ground Leases. ▇▇▇▇▇▇ also agrees that Landlord shall have audit rights with respect to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) information to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) required to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection confirm Tenant’s compliance with the Existing Fee MortgageMaster Lease terms (including, Tenant shall (I) be responsible for the costs without limitation, calculation of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 thereunderNet Revenues), 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 Landl.
Appears in 1 contract
Statements. Tenant (a) Not later than 12:00 noon, New York time, on each Determination Date, the Master Servicer shall furnish or cause deliver to the Trust Administrator a monthly report (the "Monthly Report") in a form and format mutually agreeable to the Master Servicer and the Trust Administrator containing the information set forth in Exhibit C hereto as to each Mortgage Loan as of the end of the preceding Due Period and such other information as the Trust Administrator shall reasonably require, including, without limitation, all information necessary to enable the Trust Administrator to make the payments required by Section 4.01(a). Each Monthly Report shall be an Officer's Certificate. On the Business Day preceding the Distribution Date, the Trust Administrator shall make available to the Master Servicer and the Depositor, by telecopy, with a hard copy thereof to be furnished delivered on such Distribution Date, a statement (the following "Trust Administrator's Remittance Report") containing the information set forth below with respect to Landlordsuch Distribution Date:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respectsThe Available Funds, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis Net WAC Cap and, for the Class A-1 Certificates, the Certificate Rate for the related Distribution Date;
(ii) The Class Principal Balance, the Pool Principal Balance as reported in accordance with GAAP (subjectthe prior Trust Administrator's Remittance Report or, in the case of quarterly financial statementsthe first Determination Date, to normal year-end audit adjustments the Original Class Certificate Principal Balance of each Class and the absence of footnotes)Cut-Off Date Pool Principal Balance;
(iiiii) As to CEOC:The aggregate amount of collections received on the Mortgage Loans during the related Due Period, separately stating the amounts received in respect of principal and interest;
(Aiv) annual financial statements audited The number and Principal Balances of all Mortgage Loans that were the subject of Principal Prepayments during the related Due Period;
(v) The amount of all Curtailments that were received during the Due Period;
(vi) The principal portion of all Monthly Payments received during the Due Period;
(vii) The interest portion of all Monthly Payments received on the Mortgage Loans during the Due Period;
(viii) The amount required to be paid by CEOC’s Accountant in accordance with GAAP covering the Originators or the Seller (reported separately) pursuant to Sections 2.02, 2.04 or 2.06;
(ix) The Class A Principal Distribution, the Class M-1 Principal Distribution and Class M-2 Principal Distribution for the related Distribution Date, the portion thereof to be distributed on each Class of Certificates then entitled to distributions of principal and the Class Monthly Interest Distribution Amount for the related Distribution Date to be distributed on each Class of Certificates;
(x) The amount, if any, of any Net WAC Carryover and the Outstanding Class Interest Carryover Shortfall for each Class after giving effect to the distributions to be made on the related Distribution Date;
(xi) The Class Principal Balance of each Class after giving effect to the distributions to be made on the related Distribution Date;
(xii) The weighted average remaining term to maturity of the Mortgage Loans and the weighted average Loan Rate;
(xiii) The Servicing Fee to be paid to the Master Servicer;
(xiv) The amount of all payments or reimbursements to the Master Servicer pursuant to Section 3.03;
(xv) The Overcollateralization Amount, the Overcollateralization Deficiency, the Overcollateralization Release Amount, the Target Overcollateralization Amount and the Remaining Excess Spread for such Fiscal Year and containing statement Distribution Date;
(xvi) The number 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 Mortgage Loans outstanding at the dates indicated beginning 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 at the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017)related Due Period;
(Bxvii) quarterly unaudited financial statementsThe Pool Principal Balance as of the end of the Due Period related to such Distribution Date;
(xviii) The number and aggregate Principal Balance of Mortgage Loans (w) as to which the Monthly Payment is delinquent for 30-59 days, consisting of a statement of profit 60-89 days and loss90 or more days, a balance sheetrespectively, 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 that have become REO Properties, in each case as of the end of each the related Due Period, (y) that are in foreclosure and (z) the Mortgagor of which is the first three Fiscal Quarters subject of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); andany bankruptcy or insolvency proceeding;
(Cxix) The unpaid Principal Balance of all Mortgage Loans that became Liquidated Mortgage Loans during 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 Due Period;
(ixx) 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 The Net Liquidation Proceeds received during the Term of this Lease, such Due Period;
(iixxi) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” The book value (within the meaning of Section 856(a12 C.F.R. ss. 571.13 or comparable provision) of the Code)) and (iii) any other federal, state real estate acquired through foreclosure or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, grant of a deed in each case lieu of clause (i), (ii) and (iii), subject to Section 23.1(c) belowforeclosure;
(iiixxii) As to CEC:
(A) annual financial statements audited by CEC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, Whether a balance sheet, and statement of cash flows for CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’s Accountant in connection with such Financial Statements Trigger Event 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)occurred or is continuing;
(Bxxiii) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed Such other information as is required by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position Code and results of operations of CEC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject regulations thereunder to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (60) days after the end of each made available to Holders of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017)Regular Certificates;
(Cxxiv) For so long as AGFC is the Master Servicer, the Rating Agencies ratings of the long-term unsecured debt of the Master Servicer;
(xxv) The amount of Prepayment Interest Shortfalls for the Due Period;
(xxvi) The 60+ Delinquency Percentage (Rolling Three Month) as of such additional information Distribution Date; and
(xxvii) The number and unaudited quarterly financial information concerning aggregate Principal Balance of all Mortgage Loans purchased by the Leased Property and Tenant, which information shall be limited Master Servicer pursuant to balance sheets, income statements, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require Section 3.16 for any ongoing filings with or reports to (i) the SEC under both the Securities Act related Due 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 the Term of this Lease, (ii) for all Due Periods since the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within Cut-Off Date. The Trust Administrator shall make available such report concurrently with each distribution to the meaning of Section 856(a) of Certificateholders and the Code)) Rating Agencies on the related Distribution Date. The Trust Administrator may fully rely upon 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 liability with respect to information provided by the Facility with respect Master Servicer. In the case of information furnished pursuant to the prior Lease Year subclauses (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”ii), 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(ix), (x) any Gaming Licenseand (xi) above, or (y) any other license or certificate or operating authority pursuant to which Tenant carries on any part the amounts shall be expressed in a separate section of the Primary Intended Use of all or any portion report as a dollar amount for each Class for each $1,000 original dollar amount as 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 the 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 nonCut-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 (or Manager) from (or to) any Gaming Authorities);Off Date.
(vib) 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 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 subclause (xxiii) 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which Trust Administrator shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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 Trust Administrator to Certificateholders pursuant to any requirements of the foregoing, Code as are in connection with the Existing Fee Mortgage, Tenant will furnish, or cause 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 Trust Administrator shall deliver to each Person who at any time during the calendar year was a Transferor, if requested in writing by such Person, such information as they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 Transferor. Such obligation of all leasing activity then taking place at the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which Trust Administrator shall be delivered deemed 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) have been satisfied to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) substantially comparable information shall be prepared and furnished to Certificateholders by the Trust 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 Landlforce.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (American General MRT Ln Asst BCKD Ps THR CRTS Sr 2003-1)
Statements. Tenant Not later than 12:00 noon California time on the fourth Business Day following the last day of a Due Period, the Servicer shall furnish or cause deliver to the Trustee a computer tape containing the information set forth on Exhibit D as to each Mortgage Loan as of such Due Period and such other information as the Trustee shall reasonably require. Not later than 12:00 noon California time on the Determination Date, the Trustee shall make available to the Servicer, the Depositor and to the Certificate Insurer by telecopy, and on the Distribution Date via its website, a statement (the “Trustee’s Remittance Report”) containing the information set forth below (to the extent any such information to be furnished delivered by the following Servicer pursuant to Landlordthe first sentence of this Section 5.01(a) has been so delivered) with respect to such Distribution Date:
(i) As to SPE Tenant: The Available Funds and the Class A Certificate Interest Rate for the related Distribution Date;
(aii) Within ninety (90) days after The Class A Certificate Principal Balance and the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each Aggregate Principal Balance of the first three Fiscal Quarters of each Fiscal Year Mortgage Loans as reported in the prior Trustee’s Remittance Report pursuant to subclause (commencing with the Fiscal Quarter ending March 31xii) below, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 Original Class A Certificate Balance 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);
(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 yearrelated Cut-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each Off Date Principal Balance of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowMortgage Loans;
(iii) As to CEC:
(A) annual financial statements audited by CEC’s Accountant in accordance with GAAP covering such Fiscal Year The number and containing statement Principal Balances of profit all Mortgage Loans and loss, a balance sheet, and statement of cash flows for CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters Mortgage Loans, that were the subject of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 Principal Prepayments during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowDue Period;
(iv) As soon as it is prepared and in no event later than sixty (60) days after The amount of all Curtailments that were received during the end of each Fiscal Year, a statement of Net Revenue with respect to the Facility with respect to the prior Lease Year (subject to 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 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 The principal portion of all or any portion of Monthly Payments 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 the 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 (or Manager) from (or to) any Gaming Authorities)Due Period;
(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 The amount of depreciation interest received on the Mortgage Loans;
(vii) The amount of the Monthly Advances and any improvements thereto, substantially the Compensating Interest payment to be made on the Determination Date;
(viii) The delinquency and foreclosure information set forth 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, in the form attached hereto as Exhibit IL;
(ix) The compliance certificates, as and when required pursuant to Section 4.3Remittance Amount for the Class A Certificates for the Distribution Date with the components thereof stated separately;
(x) The Annual Capital Budget as and when required in Section 10.5amount of the Insured Amounts, if any, to be paid on the Distribution Date;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant amount to Section 10.5(b)be distributed to the Class C Certificateholders for the Distribution Date;
(xii) Together with The Class A Certificate Principal Balance and the monthly reporting required pursuant Aggregate Principal Balance of the Mortgage Loans, each after giving effect to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at distribution to be made on the FacilityDistribution Date;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered The weighted average remaining term to Landlord no later than fifty-five (55) days following the commencement maturity of the Fiscal Year to which such operating budget relatesMortgage Loans and the weighted average Loan Rate;
(xiv) Within five (5) Business Days after request (or as soon thereafter as may The Servicing Fee, the Trustee Fee and the amount to be reasonably possible), such further detailed information reasonably available paid to Tenant with respect the Certificate Insurer pursuant to each SPE Tenant as may be reasonably requested by LandlordSection 5.01;
(xv) The quarterly reporting in respect amount of Bookings required all payments or reimbursements to the Servicer pursuant to Section 22.7 of this Lease3.03;
(xvi) The reporting/copies of Subleases made by Tenant Pool Factor determined using the balances in accordance with Section 22.3subclause (ii) above;
(xvii) Any notices or reporting required The amount, if any, transferred from the Spread Account to the Distribution Account pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this LeaseSection 4.01;
(xviii) The monthly reporting required percentage of the Excess Spread used to determine the Monthly Excess Spread Amount, the Spread Account Excess and the allocation of the Spread Account Excess to Reimbursable Amounts, Monthly Advances and Class C Certificateholders pursuant to Section 4.1 hereof4.01;
(xix) The amounts which are reimbursable to the Servicer or the Seller, as appropriate, pursuant to Section 5.01(a)(iv) and the amount paid to Class C Certificateholders pursuant to Section 5.01(a)(viii);
(xx) The number of Mortgage Loans outstanding at the beginning and at the end of the related Due Period;
(xxi) The amount on deposit in the Spread Account after the Distribution Date;
(xxii) The amount of losses experienced on the Mortgage Loans during the preceding Due Period and the cumulative losses for the Mortgage Loans as a percentage of the related Cut-Off Date Principal Balance;
(xxiii) The amount of Class A Available Funds Cap Carryover Amount distributed to the Class A Certificates from the Basis Risk Reserve Fund, stating separately any amounts received from the Corridor Contract Counterparty with respect to the Corridor Contract and the amount of Class A Available Funds Cap Carryover Amount remaining if any;
(xxiv) The amount on deposit in the Basis Risk Reserve Fund, the Required Basis Risk Reserve Fund Deposit and the amount of any withdrawal from such Account for the Distribution Date distributed to the Class C Certificates;
(xxv) The amount of Class Interest Carryover Shortfall relating to the Class A Certificates, stating the amount that is allocable to such Class and the amount allocable to interest and principal;
(xxvi) Whether a Servicer Termination Delinquency Event or a Servicer Termination Loss Event has occurred and specifying the details thereof;
(xxvii) During the Funding Period, the amount used to acquire Subsequent Mortgage Loans since the preceding Distribution Date and the remaining Pre-Funded Amount after acquiring Subsequent Mortgage Loans; and
(xixxxviii) During the Funding Period, the amount on deposit in the Interest Coverage Account after the Distribution Date and the Capitalized Interest Required Amount for such Distribution Date. The Trustee shall make such report available to the Servicer, the Depositor, the Certificateholders, the Certificate Insurer, the Rating Agencies and Bloomberg (at 4▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: M▇▇▇ ▇▇▇▇▇▇) on its internet website on the related Distribution Date. Assistance in using the website can be obtained by calling the Trustee’s investor relations desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution method are entitled to have a paper copy mailed to them via first class mail by calling the investor relations desk and indicating such. In connection addition, together with any Fee Mortgagee Securitizationsuch report, Tenant shall, the Trustee shall forward to Bloomberg a copy of the computer tape delivered by the Servicer on the Distribution Date. The Trustee may fully rely upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except shall have no liability with respect to information provided by the Existing Fee Mortgage, which shall be at Servicer. To the sole cost extent that there are inconsistencies between the copy of the Trustee’s Remittance Report posted on its website and expense of Tenant as provided in the final sentence of this clause hard copy issued upon request (xix)), reasonably cooperate with Landlord in providing information with respect pursuant to the Propertypreceding paragraph) thereof, Tenant or its Affiliates (excluding (i) any material non-public information, the Servicer may rely upon the former. In the case of information furnished pursuant to subclauses (ii) any Competitively Sensitive Information, and (iiiix) 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver expressed in a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy separate section of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L report as a dollar amount for each Class for each $1,000 original dollar amount as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation SCut-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 LandlOff Date.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Home Loan Mortgage Loan Trust 2005-1)
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 SPE Tenant: the Group Available Funds for the related Payment Date and each 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), annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheetClass A Certificates, and statement of cash flows for SPE Tenantthe Pool Balance as reported in the prior Trustee's Report pursuant to subclause (xiii) below, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 Group, the Facility with respect to number and aggregate Principal Balances of all Mortgage Loans that were the prior Lease Year (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 the 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 (or Manager) 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 the 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 information 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 FacilityCertificateholders, Tenantthe Certificate Insurer, CEOCthe 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 provided by the Master Servicer. To the extent that there are inconsistencies between the Trustee's Report received prior to the Payment Date and the Trustee's Report received on the Payment Date, CEC the Master Servicer, the Depositor and their Affiliates which the Certificate Insurer may rely upon the latter. In the case of information furnished pursuant to subclauses (iii), (x) and (xiii) above, the amounts shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with report as a dollar amount for each Class for each $1,000 original dollar amount as of the Existing Fee Mortgage, Tenant will furnish, or cause to be furnished, to Landlord on or before twentyCut-five Off Date.
(25a) days Within a reasonable period of time after the end of each calendar month year, the following items Trustee shall furnish to each Person who at any time during the calendar year was a Class A Certificateholder, if requested in writing by such Person, such information as they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information is reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during provide to such calendar month, and Person a statement containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause subclauses (Bvii) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) 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 such representation is made requirements of the Code as are in force from time to time.
(b) On each Payment Date, the Trustee shall forward to the Class R Certificateholders a copy of a specific date, the reports forwarded to the Class A Certificateholders in which case such representation is accurate and complete in all material respects as respect of such specific datePayment Date and a statement setting forth the amounts actually distributed to the Class R Certificateholders on such Payment Date together with such other information as the Trustee deems necessary or appropriate.
(c) Within a reasonable period of time after the end of each calendar year, and (y) 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 and furnished to Certificateholders by the Trustee pursuant to any requirements of the Code as from time to time in force.
(d) Upon reasonable advance notice in writing, the Master Servicer will provide to each Class A Certificateholder which is a savings and loan association, bank or insurance company access to information and documentation regarding the Mortgage Loans sufficient to permit such representations require qualification on Class A Certificateholders to comply with applicable regulations of the Federal Deposit Insurance Corporation or other regulatory authorities with respect to investment in the Class A Certificates.
(e) The Master Servicer and the Trustee shall furnish to each Certificateholder and to the Certificate Insurer, during the term of this Agreement, such dateperiodic, setting forth 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 the Certificate Insurer, as the case may be, or otherwise with respect to the purposes of this Agreement, all such qualifications reports or information to be provided by and in reasonable detail accordance with such applicable instructions and directions as the Certificateholder or the Certificate Insurer, as the case may be, may reasonably require; provided, that the 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 “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization proprietary nature, and shall not be copied or distributed except to the extent required by law or to S&P, Moody'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 foregoing restrictions, and in connection with the Existing Fee Mortgage, Tenant purposes and requirements of this Agreement. No Person entitled to receive copies of such reports or tapes or lists of Certificateholders shall (I) be responsible use the information therein for the costs purpose of soliciting the customers of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord Originator or for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared other 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Residential Asset Funding Corp)
Statements. Tenant (a) No later than each Determination Date, the Servicer shall furnish deliver to the Indenture Trustee (i) a printed report setting forth the payments and collections received with respect to the Loans during the Due Period for the month immediately preceding the month in which such Determination Date occurs (each such tape, a "Servicer Remittance Report") and (ii),if not included in the Servicer Remittance Report, a printed report and an electromagnetic tape in computer readable format, setting forth the information described in clauses (A) - (I) of Section 6.1(b) for the month immediately preceding the month in which such Determination Date occurs (such report, a "Delinquency Report"). Furthermore, no later than each Determination Date, the Servicer shall deliver to the Indenture Trustee a magnetic tape or cause computer disk providing such information regarding the Servicer's activities in servicing the Loans during the related Due Period as the Indenture Trustee may reasonably require.
(b) On each Distribution Date, Indenture Trustee shall distribute, based on information provided by the Servicer, a monthly statement (the "Distribution Statement"), to be furnished the Depositor, the Securityholders and the Rating Agencies, stating the date of original issuance of the Securities (day, month and year), the name of the Issuer (i.e. "_______________ Trust ____________"), the series designation of the Notes (i.e., "Series ___________"), the date of this Agreement and the following to Landlordinformation:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with Available Collection Amount and Available Distribution Amount for the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 the Class Principal Balance of each Class of Notes before and after giving effect to CEOC:
(A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering distributions made to the holders of such Fiscal Year and containing statement of profit and loss, a balance sheetSecurities on such Distribution Date, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified the Pool Principal Balance 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) last day of the Code)) 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) belowrelated Due Period;
(iii) As the Class Factor with respect to CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Class of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowthen outstanding;
(iv) As soon as it is prepared the amount of principal and in no event later than sixty (60) days after interest received on the end of each Fiscal Year, a statement of Net Revenue with respect to Loans during the Facility with respect to the prior Lease 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 with respect to Landlord 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 TenantNotes, 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 the 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 (or Manager) from (or to) any Gaming Authorities)Optimal Principal Balance thereof;
(vi) Within ten (10) Business Days after the end of each calendar monthOvercollateralization Deficiency Amount, 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 amount to be distributed to 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 Noteholders or the fixed asset methodology for propco-opco separation used as holders of the Commencement Residual Interests on such Distribution Date;
(vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of Servicing Compensation, the occurrence of any facts or circumstances whichIndenture Trustee Fee, 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 the 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) Owner Trustee Fee and the actions Tenant has taken or shall take, if any, to remedy Custodial Fee for such Tenant Event of Default (or such facts or circumstances)Distribution Date;
(viii) Such additional customary the Overcollateralization Amount on such Distribution Date, the Overcollateralization Target Amount as of such Distribution Date, the Net Loan Losses incurred during the related Due Period, the cumulative Net Loan Losses as of such Distribution Date and reasonable financial information related to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 SPE Tenant: (A) a rent roll Allocable Loss Amount for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, in the form attached hereto as Exhibit IDistribution Date;
(ix) The compliance certificates, as the weighted average maturity of the Loans and when required pursuant to Section 4.3the weighted average Loan Interest Rate of the Loans;
(x) The Annual Capital Budget certain performance information, including delinquency and foreclosure information with respect to the Loans, as and when required set forth in Section 10.5;the Servicer's Monthly Remittance Report; and
(xi) The monthly revenue and Capital Expenditure reporting required the Pre-Funding Amount at the end of the related Due Period. In addition, on each Distribution Date the Indenture Trustee shall distribute to each Securityholder, together with the information described above, the following information based solely upon information provided to the Indenture Trustee pursuant to Section 10.5(b);
(xii6.1(a) Together with upon which 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 the 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 Indenture Trustee 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlordconclusively rely without independent verification:
(A) at the sole cost number and expense of Landlord aggregate Principal Balance (except with respect including the percentage equivalent relative to the Existing Fee Mortgage, which shall be at the sole cost and expense aggregate Principal Balance of Tenant as provided in the final sentence all Loans) of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, Tenant or its Affiliates (excluding Loans (i) any material non30-public information59 days delinquent, (ii) any Competitively Sensitive Information, 60-89 days delinquent and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M 90 days or more delinquent (which statistics shall not be so excluded even if such information qualifies within clauses (iinclude Loans in foreclosure and bankruptcy but which shall exclude Foreclosure Properties), (ii) or (iii) as of this parenthetical), to the extent reasonably requested by close of business on the last day of the calendar month next preceding such Fee Mortgagee in order to satisfy Distribution Date and the market standards to which aggregate Principal Balances of all Loans as of such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agenciesdate;
(B) reviewthe number of, re-review andand aggregate Principal Balance of, 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, except with respect to the Existing Fee Mortgage, such Disclosure Document shall not contain any Tenant Information all Loans in foreclosure proceedings (other than Tenant Information any Loans described in clause (C)) and the percent of the aggregate Principal Balances of such Loans to the aggregate Principal Balances of all Loans, all as of the close of business on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions; andthe last day of the calendar month next preceding such Distribution Date;
(C) with respect to the Existing Fee Mortgagenumber of, deliver a certification to Landlord and the aggregate Principal Balance of, the related Loans in bankruptcy proceedings (i) certifying that the information set forth other than any Loans described in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B)) does not at and the time furnished contain percent of the aggregate Principal Balances of such Loans to the aggregate Principal Balances of all Loans, all as of the close of business on the last day of the calendar month next preceding such Distribution Date;
(D) the number of Foreclosure Properties, the aggregate Principal Balances of the related Loans, the book value of such Foreclosure Properties and the percent of the aggregate Principal Balances of such Loans to the aggregate Principal Balances of all Loans, all as of the close of business on the last day of the calendar month next preceding such Distribution Date;
(E) for each Foreclosure Property, the Principal Balance of the related Loan, the loan number of such Loan, the value of the Mortgaged Property, the value established by any untrue statement new appraisal, the estimated cost of disposing of the Loan and the amount of any material fact and unreimbursed Servicing Advances;
(iiF) certifying as to for each Loan which is in foreclosure, the accuracy Principal Balance of such Loan, the book value of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L Mortgaged Property, the combined loan-to-value ratio as of the date of origination, the closing combined loan-to-value ratio as of the close of business on the last day of the calendar month next preceding such Distribution Date and the last paid-to-date;
(G) the principal balance of each Loan that was modified or extended pursuant to the terms hereof;
(H) during the related Due Period, the number of and aggregate Principal Balance and the loan numbers of Loans for each of the following: (A) that became Liquidated Loans, (B) that became Defective Loans pursuant to Section 3.5 as a result of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific dateDefective Loans being Defective Loans, and (yC) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall that became Defaulted Loans;
(I) be responsible from the Closing Date through the most current Due Period, the number of and cumulative aggregate Principal Balance of Loans for the costs each of the Existing Fee Mortgagee in connection therewith following: (A) that became Liquidated Loans, (B) that became Defective Loans pursuant to the extent Landlord is required under the Existing Fee Mortgage Documents to pay Section 3.5 as a result of such costsDeleted Home loans being Defective Loans, and (IIC) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided that became Defective Loans pursuant to Section 23.1(b)(iii) shall be prepared 3.5 as a result of such Defective Loans being Defaulted Loans or a Loan in compliance with applicable federal securities lawsdefault or imminent default, including Regulation S-X the foregoing amounts by loan type (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 Landli.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Home Equity Securitization Corp)
Statements. Tenant In the event that the Holder Representative does not provide a Dispute Notice within such thirty (30)-day period, the Holder Representative and Buyer shall furnish or cause be deemed to have agreed to the Closing Statements and the calculations of Closing Date Net Working Capital, Closing Date Funded Debt, Closing Transaction Expenses and Closing Date Cash delivered by Buyer, which shall be furnished final, binding and conclusive for all purposes hereunder. Except for those Disputed Items set forth in the following Dispute Notice delivered during such 30-day period, the Holder Representative shall be deemed to Landlord:
have agreed with all other items and amounts set forth in the Closing Statements, which shall be final, binding and conclusive for all purposes hereunder. In the event a Dispute Notice is timely provided, Buyer and the Holder Representative shall use reasonable best efforts for a period of twenty (i) As to SPE Tenant: (a) Within ninety (9020) days after (or such longer period as they may mutually agree) to resolve any disagreements with respect to the calculations of Closing Date Net Working Capital, Closing Date Funded Debt, Closing Transaction Expenses or Closing Date Cash. If, at the end of each Fiscal Year such period, they are unable to resolve such disagreements, then any such remaining disagreements shall be resolved by ▇▇▇▇▇▇▇ & Marsal or such other independent accounting or financial consulting firm of recognized national standing as may be mutually selected by Buyer and the Holder Representative (commencing with such firm, subject to the Fiscal Year ending December 31following proviso, 2017the “Auditor”); provided, annual financial statements audited by an Accountant that if the Holder Representative and Buyer cannot agree on the Auditor, either party may request that the American Arbitration Association (the “AAA”) choose the Auditor, in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after which case the end of each AAA’s choice of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Auditor will be binding and the applicable prior year Fiscal Quarterexpenses of the AAA will be shared 50% by Buyer and 50% by the Holder Representative. Each of Buyer and the Holder Representative shall promptly provide their respective assertions regarding Closing Date Net Working Capital, in each caseClosing Date Funded Debt, Closing Transaction Expenses and Closing Date Cash and, to the extent required relevant thereto, the Closing Statements in writing to the Auditor and to each other, and the Auditor shall not engage in or permit any communications or meetings with Buyer or the Holder Representative without advance notice to, and the participation of if so desired, the other party or parties, as an Additional Fee Mortgagee Requirementapplicable. The Auditor shall be instructed to render its determination with respect to such disagreements, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 flowtherefor, 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 reasonably possible (which the parties hereto agree should not be later than sixty (60) days after following the end day on which the disagreement is referred to the Auditor). The Auditor shall base its determination solely on (i) the written submissions of each Fiscal Yearthe parties and shall not conduct an independent investigation and (ii) the extent (if any) to which Closing Date Net Working Capital, a statement of Net Revenue Closing Date Funded Debt, Closing Transaction Expenses or Closing Date Cash require adjustment (only with respect to the Facility with respect remaining disagreements submitted to the prior Lease Year Auditor) in order to be determined in accordance with Section 3.6(a) (subject to including the additional requirements as provided definitions of the defined terms used in Section 3.2 hereof 3.6(a)). The Auditor shall not assign to any item in respect of dispute a value that is (i) greater than the periodic greatest value for such item assigned by Buyer, on the one hand, or the Holder Representative, on the other hand, or (ii) less than the smallest value for such item assigned by Buyer, on the one hand, or the Holder Representative, on the other hand. The determination of the Variable Rent hereunder);
(v) Prompt Notice to Landlord of any actionAuditor shall be final, proposal or investigation by any agency or entityconclusive and binding on the parties. The date on which Closing Date Net Working Capital, or complaint to such agency or entity (any of which is called a “Proceeding”)Closing Date Funded Debt, 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 the Facility (and, without limitation, Tenant shall (A) keep Landlord apprised of (1) the status of any annual or other periodic Gaming License renewals, Closing Transaction Expenses 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 (or Manager) 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 Closing Date Cash are finally determined in accordance with this Section 3.6(b) is hereinafter referred to as the fixed asset methodology for propco-opco separation used as “Determination Date.” All fees and expenses of the Commencement Date;
(vii) Within three (3) Business Days of obtaining actual knowledge of Auditor relating to 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 the 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 takework, if any, to remedy such Tenant Event of Default (or such facts or circumstances);
(viii) Such additional customary be performed by the Auditor hereunder shall be borne pro rata as between Buyer, on the one hand, and reasonable financial information related the Holder Rep Fund Account, on the other hand, in proportion to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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 allocation of the foregoing, dollar value of the amounts in connection with the Existing Fee Mortgage, 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 dispute as they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses between Buyer and the actual income and expenses; Holder Representative (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant the written submissions to the above clause (BAuditor) does not at made by the time furnished contain any untrue statement Auditor such that the party prevailing on the greater dollar value of any material fact and (ii) certifying as to such disputes pays the accuracy lesser proportion of the representations made by Tenant to Landlord under Section 8.2 fees and Exhibit L as expenses. For example, if the Holder Representative challenges items underlying the calculations of Closing Date Net Working Capital, Closing Date Funded Debt, Closing Transaction Expenses and Closing Date Cash in the net amount of $1,000,000, and the Auditor determines that Buyer has a valid claim for $400,000 of the date $1,000,000, Buyer shall bear 60% of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate fees and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs expenses of the Existing Fee Mortgagee in connection therewith to Auditor and the extent Landlord is required under remaining 40% of the Existing Fee Mortgage Documents to pay such costs, fees and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days expenses of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) the Auditor shall be prepared in compliance with applicable federal securities laws, including Regulation S-X (and for any prior periods required thereunder), if and to paid from the extent such compliance with federal securities laws, including Regulation S-X (and for any prior periods required thereunder), is required to enable LandlHolder Rep Fund Account.
Appears in 1 contract
Sources: Merger Agreement (V F 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 rmgtapes@fsa.com, a computer file containing the loan level information necessary to permit the Trustee to calculate the information required by clauses (i) ▇▇▇▇▇▇▇ (▇▇▇▇▇) 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 SPE Tenant: (a) Within ninety (90) days after Available Funds and each Class’ Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) from (or to) any Gaming Authorities)Excess Interest paid as principal;
(vi) the Servicing Fee, the Premium Amount and the Reimbursement Amount;
(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 number and Principal Balances of 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 reimbursements to the Servicer pursuant to Sections 3.03(ii) and (vi);
(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 each Pre-Funding Distribution Date, 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;
(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 Interest Rate Cap Agreements, and the amount of Net Rate Cap Carryover remaining for each such Class;
(xxv) for each Pre-Funding Distribution Date, the remaining amount in the Pre-Funding Account; and
(xxvi) the amount of the Insured Payments, if any, to be made on such Distribution Date. The Trustee shall make available such report to the Servicer, the Seller, the Certificate Insurer, the Certificateholders, the Rating Agencies, Bloomberg (at 499 Park Avenue, New York, New York 10022, Attention: Mike Geller) and Intex Solutions (at 35 Highland Circle, Needham, Massachusetts 02144, Attention: Haro▇▇ ▇▇▇▇▇▇▇▇) ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇; ▇▇ovided, howev▇▇, ▇▇▇▇ ▇▇e Trustee shall remove fro▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇e Certificate ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the submission to Bloomberg and Intex Solutions. 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 “www.ctslink.com”. Assistance in using the website can be obtained by calling the Trustee’s customer service desk at (301) 815-6600. Parties that are unabl▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇ove distribution options are entitled to have a paper copy mailed to them via first class mail by call▇▇▇ ▇▇▇ ▇▇▇▇▇▇er 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 such Distribution Date and a statement setting forth the Facility), a written notice 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which 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 Certificate Insurer, 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; and
(xix) In connection with any Fee Mortgagee SecuritizationAgreement, Tenant shallsuch periodic, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except special or other reports or information, whether or not provided for herein, as shall be necessary, reasonable or appropriate with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information Certificateholder or otherwise with respect to the Propertypurposes 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;
(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, purpose except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information as set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Renaissance Home Equity Loan Tr Asset BKD Cer Ser 2002-4)
Statements. Tenant shall furnish or cause to be furnished the following statements to Landlord:
(i) As to SPE Tenant: Within sixty-five (a) Within ninety (9065) days after the end of each Tenant Parent’s Fiscal Year Years (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b2016) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing or concurrently with the Fiscal Quarter ending March 31filing by ▇▇▇▇▇▇’s Parent of its annual report on Form 10-K with the SEC, 2018), SPE whichever is earlier: (x) Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP Parent’s Financial Statements; (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 (2y) a certificate, executed by the chief financial officer or treasurer of CEOC the Tenant’s Parent (a) certifying that no Tenant Event of Default default has occurred under this Master Lease or, if such a Tenant Event of Default default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all thereto and (b) setting forth the calculation of which shall be provided within ninety (90) days after the end financial covenants set forth in Section 23.3 hereof in reasonable detail as of each such Fiscal Year (commencing with the Fiscal Year ending December 31, 20172016);
; and (Bz) 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 report with respect thereto, and (B) certifying that such to Tenant’s Parent’s 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); and
(C) such additional information and unaudited quarterly financial information concerning the Leased Property and from Tenant’s Parent’s accountants, 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to going concern and scope of audit of CEC Tenant’s Parent and its Subsidiaries (excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date of such audit or any projected financial performance or covenant default in any Material Indebtedness or this Master Lease in such twelve month period) and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC Tenant’s Parent 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 examination by CEC▇▇▇▇▇▇’s Accountant Parent’s accountants in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety generally accepted auditing standards;
(90ii) Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of the Tenant’s Parent’s Fiscal Year (commencing with the Fiscal Year fiscal quarter ending December 31June 30, 2017);
(B2016) or concurrently with the filing by ▇▇▇▇▇▇’s Parent of its quarterly unaudited financial statementsreport on Form 10-Q with the SEC, consisting of a statement of profit and losswhichever is earlier, a balance sheet, and statement copy of cash flows ▇▇▇▇▇▇’s Parent’s Financial Statements for CECsuch period, together with a certificate, executed by the chief financial officer or treasurer of CEC Tenant’s Parent (i) certifying that no default has occurred or, if such a default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth the calculation of the financial covenants set forth in Section 23.3 hereof in reasonable detail as of such quarter, to the extent one complete Test Period has been completed which has commenced following the date of this Master Lease and (iii) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC Tenant’s Parent 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(Ciii) Promptly following ▇▇▇▇▇▇▇▇’s request from time to time, (a) five-year forecasts of Tenant’s income statement and balance sheet covering such quarterly and annual periods as may be reasonably requested by Landlord, and in a format consistent with Tenant Parent’s quarterly and annual financial statements filed with the SEC, and such additional financial information and projections as may be reasonably requested by Landlord in connection with syndications, private placements, or public offerings of GLP’s or Landlord’s debt securities or loans or equity or hybrid securities and (b) 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, Tenant as Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP may require for any its ongoing filings with or reports to (i) the SEC under both the Securities Act and the Securities Exchange ActAct of 1934, as amended, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP during the Term of this Master Lease, (ii) the Internal Revenue Service (including in respect of Landlord REITGLP’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo GLP or Landlord REIT its Subsidiaries subject to Section 23.1(c) below);
(iv) As soon as it is prepared and in no event later than sixty Within thirty-five (6035) days after the end of each Fiscal Yearcalendar month, a copy of Tenant’s income statement for such month and Tenant’s balance sheet as of Net Revenue the end of such month (which may be subject to quarterly and year-end adjustments and the absence of footnotes); provided, however, that with respect to each calendar quarter, Tenant shall provide such financial reports for the Facility with respect to final month thereof as soon as is reasonably practicable following the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect closing of the periodic determination of books for such month and in sufficient time so that Landlord or its Affiliate is able to include the Variable Rent hereunderoperational results for the entire quarter in its current Form 10-Q or Form 10-K (or supplemental report filed in connection therewith);
(v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity 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 the 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 (or Manager) from (or to) any Gaming Authorities)Property;
(vi) Within ten As soon as it is prepared and in no event later than sixty (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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (2560) days after the end of each calendar month the following items as they pertain to SPE Tenant: (A) Fiscal Year, a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room and entertainment operating metrics for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses capital and operating income (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant Facility for each that Fiscal Year, which shall ; and
(vii) Tenant further agrees to provide the financial and operational reports to be delivered to Landlord no later than fifty-five (55under this Master Lease in such electronic format(s) 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 reasonably be reasonably possible), such further detailed information reasonably available required by Landlord from time to Tenant with respect time in order 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, facilitate ▇▇▇▇▇▇▇▇’s internal financial 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact reporting database and (ii) certifying as permit Landlord to the accuracy of the representations made by Tenant calculate any rent, fee or other payments due under Ground Leases. ▇▇▇▇▇▇ also agrees that Landlord shall have audit rights with respect to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) information to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) required to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection confirm Tenant’s compliance with the Existing Fee MortgageMaster Lease terms (including, Tenant shall (I) be responsible for the costs without limitation, calculation of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 thereunderNet Revenues), 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 Landl.
Appears in 1 contract
Statements. Tenant shall furnish or cause to be furnished the following to Landlord:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 Not less than two (2) a certificateBusiness Days prior to the anticipated Closing Date, 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 Seller Parent shall deliver 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);
(B) quarterly unaudited financial statements, consisting of Purchaser Parent 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 “Estimated Closing Date 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 “ProceedingStatement”), known to Tenant, signed by the result Chief Financial Officer or the Vice President 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 Finance of the Primary Intended Use of all or any portion Seller Parent (on behalf and in the name of the Leased Property which, in any case under this clause (y) (individually or collectivelySeller Parent), would be reasonably expected to cause a material adverse effect on Tenant or in respect setting forth the Seller Parent’s good faith estimate of the Facility Net Working Capital (and, without limitation, Tenant the “Estimated Working Capital Amount”). The Seller Parent shall (A) keep Landlord apprised of (1) make such changes to 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 (or Manager) 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 the 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 takeEstimated Closing Date Financial Statement, if any, to remedy such Tenant Event of Default (or such facts or circumstances);as are reasonably requested by the Purchaser Parent.
(viiib) Such additional customary and reasonable financial information related to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements Not less than two (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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 (52) Business Days after request prior to the anticipated Closing Date, the Seller Parent shall deliver to the Purchaser Parent a statement (or as soon thereafter as may be reasonably possiblethe “Closing Date Indebtedness Statement”), such further detailed information reasonably available signed by the Chief Financial Officer or the Vice President of Finance of the Seller Parent (on behalf and in the name of the Seller Parent), setting forth, by lender, the aggregate amount of the Indebtedness. The Seller Parent shall attach 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/the Closing Date Indebtedness Statement copies of Subleases made by Tenant the Payoff Letters delivered in accordance with Section 22.3;8.1(h).
(xviic) Any notices Not less than two (2) Business Days prior to the anticipated Closing Date, the Seller Parent shall deliver to the Purchaser Parent a statement (the “Closing Date Expense Statement”), signed by the Chief Financial Officer or reporting required pursuant the Vice President of Finance of the Seller Parent (on behalf and in the name of the Seller Parent), setting forth, by payee, the Change of Control Payments and the Transaction Expenses. The Seller Parent shall attach to Article XXXII hereof or otherwise pursuant the Closing Date Expense Statement documents which confirm that upon payment of the respective amounts specified in such Closing Date Expense Statement, each Person that is to any other provision be paid in accordance with such Closing Date Expense Statement shall have been paid in full for all Change of this Lease;Control Payments and Transaction Expenses, as applicable.
(xviiid) The monthly reporting required pursuant to Section 4.1 hereof; and
Not less than two (xix2) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect Business Days prior to the Existing Fee Mortgageanticipated Closing Date, which the Seller Parent shall be at deliver to the sole cost Purchaser Parent a statement (the “Purchase Price Allocation Percentage Statement”), signed by the Chief Financial Officer or the Vice President of Finance of the Seller Parent (on behalf and expense of Tenant as provided in the final sentence name of this clause (xix)the Seller Parent), reasonably cooperate with Landlord in providing information with respect setting forth, by Seller, such Seller’s Purchase Price Allocation Percentage. The Seller Parent shall make such changes to the PropertyPurchase Price Allocation Percentage Statement, Tenant or its Affiliates (excluding (i) any material non-public informationif any, (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 as are 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlPurchaser Parent.
Appears in 1 contract
Sources: Purchase Agreement (University General Health System, Inc.)
Statements. Tenant shall furnish or cause to be furnished the following statements to Landlord (which Tenant acknowledges and agrees may be provided by Landlord to Landlord:’s Parents):
(i) As On the earlier of five (5) Business Days following (x) each date specified in the Exchange Act and the SEC’s related rules and regulations (including any additional time permitted under Rule 12b-25 or any successor provision thereof) that the Tenant’s Parent is (or would be, as a large accelerated filer, if not required to SPE file SEC Reports at that time) required to file SEC Reports (each a “SEC Filing Deadline”) and (y) the date the Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing ’s Parent files its SEC Reports with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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:
SEC: (A) annual financial statements audited by CEOCTenant’s Accountant Parent’s Financial Statements required to be included in accordance with GAAP covering such Fiscal Year and SEC Report (or which would be, if not required to file SEC Reports at that time) or the SEC Report 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 Statements; (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 a Responsible Officer of CEOC Tenant certifying that no Tenant Event of Default default has occurred under this Lease or, if such a Tenant Event of Default default has occurred, specifying the nature and extent thereof status of such default; and any corrective action taken or proposed to be taken (C) (1) with respect theretoto annual Financial Statements, all a report with respect to Tenant’s Parent’s Financial Statements from Tenant’s Parent’s independent registered public accounting firm, which report shall not be subject to any qualification or exception expressing substantial doubt about the ability of which shall be provided within ninety the Tenant’s Parent and its Subsidiaries to continue as a “going concern” or any exception as to the scope of such audit (90excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date such report is delivered or any projected financial performance or covenant default in any Indebtedness or this Lease in such twelve month period) days after the end of each Fiscal Year (commencing and that such Financial Statements have been prepared in accordance with GAAP and Tenant’s Parent’s accountants have examined such Financial Statements in accordance with the Fiscal Year ending December 31standards of the PCAOB (or generally accepted auditing standards, 2017);
if not required to file SEC Reports at such time) and (B2) with respect to quarterly unaudited financial statementsFinancial 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 a Responsible Officer of the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred orTenant’s Parent, 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 Tenant’s Parent and its Subsidiaries on a consolidated basis in accordance with GAAP as at such date and for such period (subject to normal year-end audit adjustments and adjustments, the absence of footnotesfootnotes and other informational disclosures customarily omitted from interim financial statements), all of which . Financial statements required to be delivered pursuant to this Section 23.1(b)(i) will be deemed delivered to the extent such documents are included in materials filed with the SEC and shall be provided deemed to have been delivered on the date such documents are publicly available on the SEC’s website;
(xii) within Within sixty (60) days after the end of each of the first three Tenant’s Fiscal Quarters of each Fiscal Year Years (commencing with the Fiscal Quarter Year ending March December 31, 20182022); and, (a) a budget and projection by fiscal quarter for the Fiscal Year in which the budget is delivered, including projected Net Revenue, Net Income, EBITDA, EBITDAR, Net Revenue by division, and Operating Expenses by division with respect to Tenant, (b) a budget and projection by fiscal year for the second and third subsequent Fiscal Years, including projected Net Revenue, EBITDA, EBITDAR with respect to Tenant, (c) a capital budget for Tenant for the following Fiscal Year. EBITDA shall be calculated in accordance with Exhibit L.
(Ciii) Within twenty (20) days after the expiration of any calendar quarter, Tenant shall deliver to Landlord a Financial Covenant compliance report in substantially in the form attached hereto as Exhibit J, which shall include a calculation of the Financial Covenant and Listing Covenant under Section 23.3 as of the relevant date as applicable, based upon the preliminary statements for such Test Period (the “Preliminary Financial Covenant Compliance Report”).
(iv) Within sixty (60) days after the expiration of any calendar quarter, Tenant shall deliver to Landlord a Financial Covenant compliance report in substantially in the form attached hereto as Exhibit J, which report shall include an Officer’s Certificate certifying (1) that the Financial Covenant and Listing Covenant are in compliance under Section 23.3 together with reasonable detail evidencing such compliance, and (2) that such items are true, correct, accurate, and complete and fairly present the financial condition and results of the operations of the Tenant (subject to normal year-end adjustments) as of the relevant date as applicable (the “Final Financial Covenant Compliance Report”).
(v) Within sixty (60) days after the expiration of any calendar quarter, Tenant shall deliver to Landlord a quarterly operating report in substantially the form attached hereto as Exhibit M, accompanied by an Officer’s Certificate stating that such items in such quarterly operating report are true, correct, accurate, and complete and fairly present the financial condition and results of the operations of the Tenant (subject to normal year-end adjustments) as of the relevant date as applicable, which reports shall include: (a) an occupancy report including the average daily rate and Net Revenue per available room and (b) quarterly, year to date and trailing twelve months operating statements noting Net Revenue, Net Income, EBITDA, EBITDAR, Net Revenue by division, Operating Expenses by division, and, to the extent such information is available to Tenant and Tenant is permitted, under the terms of the RSB Services Agreement, to provide such information, RSB Net Revenue (the “Quarterly Operating Report”).
(vi) Commencing with the year ended December 31, 2022, Tenant will furnish to Landlord annually within one hundred twenty (120) days following the end of such Fiscal Year, a complete copy of the Tenant’s consolidated audited annual financial report with statements in accordance with GAAP covering the Facility, which shall be accompanied by a report from an Approved Accounting Firm, which report shall indicate that such financial statements are prepared in accordance with GAAP as of such date and shall not be subject to any qualification or exception expressing substantial doubt about the ability of Tenant to continue as a “going concern” or any exception as to the scope of such audit (excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date such report is delivered or any projected financial performance or covenant default in any Indebtedness or this Lease in such twelve month period). Promptly following receipt by Landlord of each audited annual financial report, together with reasonable evidence of the third-party costs and expenses incurred by Tenant or its Affiliates in connection with such report, Landlord shall be required to reimburse Tenant or its Affiliates for one-half of all such third-party costs and expenses incurred by Tenant or its Affiliates.
(vii) Tenant will furnish to Landlord annually within ninety (90) days following the end of such Fiscal Year, the Annual Certificate.
(a) Such additional financial information and projections as may be reasonably requested by Landlord in connection with syndications, private placements or public offerings by or on behalf of Landlord of debt securities or loans or equity or hybrid securities and (b) 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, Tenant as Landlord, PropCo 1, PropCo Landlord or Landlord REIT its Affiliates may require for any ongoing their 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 SEC Reports and registration statements to be filed by Landlord, PropCo 1, PropCo Landlord or Landlord REIT its Affiliates during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo Landlord or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) below;
(iii) As to CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance or Affiliates; provided, however, that (a) such consolidated financial statements present fairly if the consolidated financial position of CEC and SEC requires Landlord or 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 CECAffiliates to include Tenant’s Accountant in connection with such Parent’s Financial Statements has been made in accordance with GAAPits SEC Reports, which Tenant shall be provided within ninety use its commercially reasonable efforts to furnish substantially complete drafts of Tenant’s Parent’s annual Financial Statements to Landlord no later than fifty-five (9055) calendar days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017);
(B) such year and Tenant’s Parent’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC and its Subsidiaries on a consolidated basis in accordance with GAAP to Landlord no later than thirty-five (subject to normal year-end audit adjustments and the absence of footnotes35) which shall be provided within sixty (60) calendar days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);such quarter.
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder);
(vix) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity 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 materially 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 material part of the Primary Intended Use of all or any portion of the Leased Property which, in any case Property.
(x) Tenant further agrees to provide the financial and operational reports to be delivered to Landlord under this clause Lease in such electronic format(s) as may reasonably be required by Landlord from time to time in order to facilitate Landlord’s internal financial and reporting database. Tenant also agrees that Landlord shall have audit rights with respect to such information to the extent required to confirm Tenant’s compliance with the terms of this Lease (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of the Facility (andincluding, without limitation, Tenant shall (A) keep Landlord apprised calculation of (1) the status of any annual or other periodic Gaming License renewals, EBITDAR 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 (or Manager) 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 expenditures with respect to such fixed assets constituting Leased Property Required CapEx). Tenant shall not change the accounting practices or policies described in this Lease for the purpose of calculating EBITDAR and expenditures with respect to Required CapEx, which the parties agree is based on Tenant’s Existing Accounting Guidelines. Furthermore, Tenant will not enter into any “off balance sheet arrangement” outside the normal course of operations as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions determined in accordance with the fixed asset methodology for propco-opco separation used GAAP 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlEffective Date.
Appears in 1 contract
Statements. Tenant shall furnish or cause to be furnished the following to Landlord:
a. Within fifteen (i) As to SPE Tenant: (a) Within ninety (9015) days after of the end date Buyer receives the audited financial statements of each Fiscal Year Buyer that include the operations of the Company for a period described in Section 2, above, Buyer shall deliver to Seller a statement setting forth in reasonable detail a calculation of the Company’s Organic EBITDA, together with reasonable supporting documentation therefor, for the applicable periods set forth in Section 2 (commencing the “Statement”). The Statement shall become final and binding upon the parties on the fifteenth (15th) Business Day following delivery thereof to Seller and shall be used in computing the amount of the Earn-Out Payments, unless Seller delivers written notice of its disagreement with the Fiscal Year ending December 31Statement (“Notice of Earn-Out Disagreement”) to Buyer within fifteen (15) Business Days of the date of Seller’s receipt of the Statement, 2017)which Notice of Earn-Out Disagreement shall specify in reasonable detail Seller’s specific objections (including specific amounts, annual financial statements audited to the extent known) to the Statement together with reasonable supporting documentation therefor, including alternative calculations, schedules and spreadsheets.
b. In the event Seller delivers a Notice of Earn-Out Disagreement in accordance with Section 3 of this Annex A, the Dispute Resolution Procedures set forth in Section 2.04(c) of the Agreement shall be followed in resolving any objections specified in such Notice of Earn-Out Disagreement. The parties’ sole recourse in the event of a dispute in respect of the Earn-Out Payments hereunder and the requirements of this Annex A shall be limited to the application of the Dispute Resolution Procedures in accordance with this Annex A, except that Buyer, the Company or Seller may initiate litigation in accordance with Section 8.10 of the Agreement solely to the extent it becomes necessary for such party to enforce the obligations of the other parties under this Annex A as determined by an the Independent Accountant in accordance with GAAP covering such Fiscal Year and containing statement the Dispute Resolution Procedures. In the event it becomes necessary for any of profit and lossBuyer, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each Company or Seller to initiate litigation to enforce the obligations of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required other parties under this Annex A as an Additional Fee Mortgagee Requirement, together with a certificate, executed determined by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 Independent Accountant in accordance with GAAP covering the Dispute Resolution Procedures, the party prevailing in the outcome of such Fiscal Year litigation shall be entitled to recover from the opposing party such prevailing party’s reasonable costs and containing statement expenses associated with such litigation, including reasonable attorneys’ fees.
c. The parties acknowledge and agree that Buyer shall cause the Company to be managed and operated in good faith and in a manner that is not intended to frustrate Seller’s ability to earn the Earn-Out Payments. For avoidance of profit and lossdoubt, a balance sheetduring the periods described in Section 2, above, Buyer shall not, and statement of cash flows for CEOCshall cause the Company to not, 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 direct 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 redirect 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 Actbusiness, including, but not limited to, any product or service line, currently engaged in or offered by the Company to 10Buyer, any current or future Affiliate of Buyer or Live Ventures, Inc., or to any third- party. Upon a change-Q Quarterly Reports, 10of-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 “real estate investment trust” (within the meaning of Section 856(a) control of the Code)) and (iii) any other federal, state Company 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 Buyer 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 the 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 (or Manager) 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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)the definition of “Change-of-Control” as defined in the Promissory Note, Seller shall be deemed to have automatically earned a final Earn-Out Payment in an amount equal to the extent reasonably requested amount determined by such Fee Mortgagee in order subtracting (a) the amount of Earn-Out Payments paid 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;
(B) review, re-review and, Seller prior to the extent accuratedate of the Change- of-Control of the Company from (b) the maximum amount of potential of Earn-Out Payments described in Section 2 of this Annex A, approve (and which amount Buyer shall pay to Seller in immediately available funds concurrent with the change-of-control of the Company or Buyer.
d. Subject to the extent inaccurateforegoing, identify Buyer, including 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 TenantCompany, which portions shall be limited to any portions relating solely to Tenant Information; provided that, except have discretion with respect to the Existing Fee Mortgageoperation of the Company’s business, such Disclosure Document shall not contain any Tenant Information including (other than Tenant Information described on Exhibit M heretoA) that includes any material non-public informationthe marketing, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions; and
pricing and distribution of all of the Company’s products and services, (B) the procurement of raw materials, supplies and services, and (C) the hiring and termination of employees, consultants, independent contractors and other advisors. Except as expressly provided herein, neither Buyer nor the Company shall owe any duty (fiduciary or otherwise) to Seller Parties in respect of the Earn-Out Payments; provided, however, that neither Buyer nor the Company shall take any action in bad faith with the sole and express intention of reducing the value of the Earn-Out Payments. Seller Parties further acknowledge and agree that the amount of the Earn-Out Payments is contingent on the performance of the business of the Company and there is no guaranteed minimum Earn-Out Payment under the Agreement or this Annex A. Seller and Seller Individual hereby agree that Buyer does not make any representation and expresses no opinion as to the value of the potential Earn- Out Payments, if any, and all warranties (whether written or oral, express or implied) with respect to or relating to the Existing Fee MortgageEarn-Out Payments are expressly excluded. Notwithstanding the other terms of this Annex A or the Agreement, deliver a certification nothing contained in this Annex A or the Agreement shall be deemed to Landlord preclude Seller Parties from (i) certifying that enforcing the information set forth in such portions terms of any Disclosure Document approved by Tenant pursuant to the above clause (Bthis Section 3(d) does not at the time furnished contain any untrue statement of any material fact and and/or (ii) certifying as to the accuracy submitting a Notice of the representations made Earn-Out Disagreement based on a breach by Tenant to Landlord under Buyer of this Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”3(d). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landl.
Appears in 1 contract
Statements. Tenant shall furnish or cause to be furnished the following statements to Landlord:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 flowshall, 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 available and in no any event later than sixty within one hundred twenty (60120) days after the end of each Fiscal Year, a statement of Net Revenue with respect to the Facility with respect to the prior Lease 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 provide to Landlord annual audited financial statements of any actionGuarantor and Tenant for such Fiscal Year, proposal or investigation by any agency or entity, or complaint to such agency or entity (any including therein the balance sheets of which is called a “Proceeding”), known to Tenant, the result Guarantor and Tenant 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 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 the 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 (or Manager) 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 such Fiscal Year and statements of any fixed assets constituting Leased Property, describing earnings and statements of cash flow of Guarantor and Tenant for 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder)Fiscal Year, in each case as may be required certified in a manner acceptable to Landlord by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder independent certified public accountants of recognized national standing selected by Tenant and reasonably acceptable to Landlord (the extent required by Section 31.3. Without limitation form of the foregoing, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause such certification to be furnishedreasonably satisfactory to Landlord), to Landlord prepared in accordance with GAAP, except as otherwise noted therein, on or before twentya basis consistent with prior periods and fairly presenting the financial condition of Guarantor and Tenant at the end of such Fiscal Year and the immediately preceding Fiscal Year and in comparative columnar form.
(b) Tenant shall, as soon as available and in any event within forty-five (2545) days after the end of each calendar month Quarter, provide to Landlord quarterly financial statements of the following items as they pertain to SPE Tenant: (A) a rent roll Tenant for the subject month, an occupancy report for the subject monthsuch Quarter, including an average daily rate therein the balance sheets of Guarantor and revenue per available room Tenant as of the end of such Quarter, and entertainment operating metrics statements of earnings and statements of cash flow of Guarantor and Tenant for such Quarter, in each case certified in a manner acceptable to Landlord by such entity’s chief accounting officer as being prepared in accordance with GAAP, except as otherwise noted therein, and that such quarterly financial statements fairly present to financial condition of each of Guarantor and Tenant as of the subject month; (B) monthly end of such Quarter and year-to-date operating date.
(c) with the statements prepared for each calendar monthsubmitted pursuant to Subsections (a) and (b) of this Section, noting gross revenue, net revenue, operating expenses and operating income (not including any contributions a certificate signed on behalf of Tenant by the principal financial or accounting officer of Tenant to the FF&E Reserve)effect that no Event of Default specified herein nor any event which, upon notice or with the passage of time or both, would constitute such an Event of Default has occurred and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar monthis continuing, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reportsor, in each case, if any such Event of Default or event has occurred and is continuing, specifying the form attached hereto as Exhibit I;
(ix) The compliance certificates, as nature and when required pursuant to Section 4.3;
(x) The Annual Capital Budget as and when required in Section 10.5;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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 hereofextent thereof; and
(xixd) In connection with any Fee Mortgagee Securitizationpromptly, Tenant shallfrom time to time, upon such other information regarding the written request of Landlord:
(A) at the sole cost operations, business affairs and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense financial condition of Tenant as provided in the final sentence of this clause (xix))Landlord may reasonably request, reasonably cooperate with Landlord in providing information with respect to the Propertyincluding, Tenant or its Affiliates (excluding (i) any material non-public informationwithout limitation, (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;
(B) review, re-review and, to the extent accurate, approve (and to the extent inaccurate, identify the same with particularity) portions prompt notice of any Disclosure Document (Event of Default or any other similar material required to be reviewed by Landlord under a Fee Mortgage) identified by Landlord to be reviewed by Tenantevent which, which portions shall be limited to any portions relating solely to Tenant Information; provided thatwith the passage of time or the giving of notice, except with respect to the Existing Fee Mortgageor both, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions would constitute an Event of Default and prompt notice of any Disclosure Document approved action, suit or proceeding at law or in equity or by Tenant pursuant to the above clause (B) does not at the time furnished contain or before any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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)governmental instrumentality or other agency which, if and to adversely determined, would materially adversely affect Tenant’s or the extent such compliance with federal securities lawsPremises’ business, including Regulation S-X (and for any prior periods required thereunder)operations, is required to enable Landlproperties, assets or condition, financial or otherwise.
Appears in 1 contract
Sources: Lease (Global Medical REIT Inc.)
Statements. Tenant (a) Not later than 12:00 a.m. New York time on each Distribution Date, the Trustee shall furnish or cause deliver to the Servicer, the Depositor and the Seller by electronic transmission in the format specified in Exhibit K (unless otherwise agreed to by the parties hereto), with a hard copy thereof to be furnished delivered on such Distribution Date, a statement (the following "Trustee's Remittance Report") (based solely on the computer or electronic Servicing Certificate for such Distribution Date provided pursuant to LandlordSection 4.1 other than the information contained in subclause (xxv) hereof) containing the information set forth below with respect to such Distribution Date:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end The principal balance of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Class and the applicable Aggregate Loan Balance as reported in the prior year Fiscal QuarterTrustee's Remittance Report, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 Original Class Certificate Principal Balance of each Class, and the absence of footnotes)Initial Cut-Off Date Aggregate Loan Balance;
(ii) As The aggregate amount of collections received on the Mortgage Loans on or prior 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 Determination Date in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning preceding Collection Period, separately stating the amounts received in respect of Section 856(a) principal and interest and reporting separately, the amounts received in respect of scheduled principal payments and the Code)) 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) belowamounts representing Principal Prepayments;
(iii) As to CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed The amount repaid by the chief financial officer Seller pursuant to Sections 2.2, 2.6 or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) below2.7;
(iv) As soon as it is prepared and in no event later than sixty (60) days after The amount of the end of each Fiscal Year, a statement of Net Revenue Monthly Advances to be made with respect to such Distribution Date and the Facility with respect amount of outstanding Monthly Advances on such Distribution Date prior to any reimbursement to be made on such Distribution Date; the prior Lease Year (subject to amount by which the additional requirements as provided in Section 3.2 hereof in respect of aggregate Compensating Interest for such Distribution Date exceeds the periodic determination of available Monthly Excess Cashflow Amount for such Distribution Date and the Variable Rent hereunder)amount by which such remaining Compensating Interest exceeds the Servicing Fee for such Distribution Date;
(v) Prompt Notice The amount of Special Hazard Coverage available 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 Senior Certificates remaining as of the Primary Intended Use close of all or any portion of business on 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 the 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 (or Manager) from (or to) any Gaming Authorities);Determination Date.
(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 The amount of depreciation and any improvements thereto, substantially in Bankruptcy Coverage available to 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 Certificateholders remaining as of the Commencement close of business on the applicable Determination Date;
(vii) Within three (3) Business Days The amount of obtaining actual knowledge Fraud Coverage available to the Certificateholders remaining as of the occurrence close of a Tenant Event of Default (or of business on 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 the 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);applicable Determination Date; and
(viii) Such additional customary The Class Principal Balance of each Class and reasonable financial information related the Class Principal Balance after giving effect to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause distribution to be furnished, to Landlord made on or before twenty-five (25) days after the end of each calendar month the following items as they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, in the form attached hereto as Exhibit IDistribution Date;
(ix) The compliance certificates, as weighted average remaining term to maturity of the Mortgage Loans and when required pursuant to Section 4.3the weighted average Loan Rate;
(x) The Annual Capital Budget as and when required in Section 10.5Servicing Fee;
(xi) The monthly revenue and Capital Expenditure reporting required amount of all payments or reimbursements to the Servicer pursuant to Section 10.5(b)3.3;
(xii) Together with the monthly reporting required pursuant The amount of Realized Losses incurred in respect of each Loan Group allocable to the preceding clause (xi), an updated rent roll related Certificates on the related Distribution Date and a summary the cumulative amount of all leasing activity then taking place at Realized Losses incurred in respect of each Loan Group allocated to such Certificates since the Facility;Initial Cut-Off Date.
(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;[RESERVED]
(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;[RESERVED]
(xv) The quarterly reporting in respect of Bookings required pursuant to Section 22.7 of this Lease;[RESERVED]
(xvi) The reporting/copies number of Subleases made by Tenant in accordance with Section 22.3Mortgage Loans outstanding at the beginning and at the end of the related Collection Period;
(xvii) Any notices or reporting required pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this LeaseThe amount on deposit in the Pre-Funding Account and the Capitalized Interest Account after such Distribution Date;
(xviii) The monthly aggregate Liquidation Loss Amount and the related number of Mortgage Loans (reporting required pursuant separately, sales of Mortgage Loans and foreclosures on Mortgage Loans), if any, for the preceding Collection Period, the cumulative Total Losses and the Rolling Three Month Delinquency Rate;
(xix) The Aggregate Loan Balance, as of the end of the Collection Period related to Section 4.1 hereofsuch Distribution Date;
(xx) The number and aggregate Loan Balances of Mortgage Loans (w) as to which the Monthly Payment is delinquent for 30-59 days, 60-89 days and 90 or more days, respectively (including Mortgage Loans in foreclosure and REO and any Mortgage Loan if the related Mortgagor is subject to an Insolvency Event), (x) that have become REO, in each case as of the end of the preceding Collection Period, (y) that are in foreclosure, and (z) the Mortgagor of which is the subject of any bankruptcy or insolvency proceeding;
(xxi) The unpaid principal amount of all Mortgage Loans that became Liquidated Mortgage Loans during such Collection Period;
(xxii) The loan number and principal balance as of the close of business on the Distribution Date in such month and the date of acquisition thereof of such Mortgage Loans that become REO during the preceding Collection Period;
(xxiii) The Net Liquidation Proceeds received during such Collection Period;
(xxiv) The Valuation of any real estate acquired through foreclosure or grant of a deed in lieu of foreclosure as of the close of business on the last Business Day of the previous Collection Period; and
(xixxxv) In connection with any Fee Mortgagee SecuritizationThe remaining Pre-Funded Amount, Tenant shallif any, the Pre- Funding Amount Earnings, the balance of the Capitalized Interest Account, if any, and the Overfunded Interest Amount, if any. The Trustee shall forward such report to the Certificateholders on such Distribution Date. The Trustee may fully rely upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except shall have no liability with respect to information provided by the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlServicer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Union Residential Securitization Transactions Inc)
Statements. Tenant shall furnish or cause to be furnished the following statements to Landlord:
(i) As to SPE Tenant: Within sixty-five (a) Within ninety (9065) days after the end of each Tenant Parent’s Fiscal Year Years (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b2013) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing or concurrently with the Fiscal Quarter ending March 31filing by ▇▇▇▇▇▇’s Parent of its annual report on Form 10-K with the SEC, 2018), SPE whichever is earlier: (x) Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP Parent’s Financial Statements; (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 (2y) a certificate, executed by the chief financial officer or treasurer of CEOC the Tenant’s Parent (a) certifying that no Tenant Event of Default default has occurred under this Master Lease or, if such a Tenant Event of Default default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all thereto and (b) setting forth the calculation of which shall be provided within ninety (90) days after the end financial covenants set forth in Section 23.3 hereof in reasonable detail as of each such Fiscal Year (commencing with the Fiscal Year ending December 31, 20172014);
; and (Bz) 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 report with respect thereto, and (B) certifying that such to Tenant’s Parent’s 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); and
(C) such additional information and unaudited quarterly financial information concerning the Leased Property and from Tenant’s Parent’s accountants, 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to going concern and scope of audit of CEC Tenant’s Parent and its Subsidiaries (excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date of such audit or any projected financial performance or covenant default in any Material Indebtedness or this Master Lease in such twelve month period) and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC Tenant’s Parent 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 examination by CECTenant’s Accountant Parent’s accountants in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety generally accepted auditing standards;
(90ii) Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of the Tenant’s Parent’s Fiscal Year (commencing with the Fiscal Year fiscal quarter ending December March 31, 2017);
(B2014) or concurrently with the filing by ▇▇▇▇▇▇’s Parent of its quarterly unaudited financial statementsreport on Form 10-Q with the SEC, consisting of a statement of profit and losswhichever is earlier, a balance sheet, and statement copy of cash flows ▇▇▇▇▇▇’s Parent’s Financial Statements for CECsuch period, together with a certificate, executed by the chief financial officer or treasurer of CEC Tenant’s Parent (i) certifying that no default has occurred or, if such a default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth the calculation of the financial covenants set forth in Section 23.3 hereof in reasonable detail as of such quarter, to the extent one complete Test Period has been completed which has commenced following the date of this Master Lease and (iii) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC Tenant’s Parent 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(Ciii) Promptly following ▇▇▇▇▇▇▇▇’s request from time to time, (a) five-year forecasts of Tenant’s income statement and balance sheet covering such quarterly and annual periods as may be reasonably requested by Landlord, and in a format consistent with Tenant Parent’s quarterly and annual financial statements filed with the SEC, and such additional financial information and projections as may be reasonably requested by Landlord in connection with syndications, private placements, or public offerings of GLP’s or Landlord’s debt securities or loans or equity or hybrid securities and (b) 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, Tenant as Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP may require for any its ongoing filings with or reports to (i) the SEC under both the Securities Act and the Securities Exchange ActAct of 1934, as amended, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP during the Term of this Master Lease, (ii) the Internal Revenue Service (including in respect of Landlord REITGLP’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo GLP or Landlord REIT its Subsidiaries subject to Section 23.1(c) below);
(iv) As soon as it is prepared and in no event later than sixty Within thirty-five (6035) days after the end of each Fiscal Yearcalendar month, a copy of Tenant’s income statement for such month and Tenant’s balance sheet as of Net Revenue the end of such month (which may be subject to quarterly and year-end adjustments and the absence of footnotes); provided, however, that with respect to each calendar quarter, Tenant shall provide such financial reports for the Facility with respect to final month thereof as soon as is reasonably practicable following the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect closing of the periodic determination of books for such month and in sufficient time so that Landlord or its Affiliate is able to include the Variable Rent hereunderoperational results for the entire quarter in its current Form 10-Q or Form 10-K (or supplemental report filed in connection therewith);
(v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity 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 the 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 (or Manager) from (or to) any Gaming Authorities)Property;
(vi) Within ten As soon as it is prepared and in no event later than sixty (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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (2560) days after the end of each calendar month the following items as they pertain to SPE Tenant: (A) Fiscal Year, a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room and entertainment operating metrics for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses capital and operating income (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant Facility for each that Fiscal Year, which shall ; and
(vii) Tenant further agrees to provide the financial and operational reports to be delivered to Landlord no later than fifty-five (55under this Master Lease in such electronic format(s) 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 reasonably be reasonably possible), such further detailed information reasonably available required by Landlord from time to Tenant with respect time in order 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, facilitate ▇▇▇▇▇▇▇▇’s internal financial 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact reporting database and (ii) certifying as permit Landlord to the accuracy of the representations made by Tenant calculate any rent, fee or other payments due under Ground Leases. ▇▇▇▇▇▇ also agrees that Landlord shall have audit rights with respect to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) information to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) required to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection confirm Tenant’s compliance with the Existing Fee MortgageMaster Lease terms (including, Tenant shall (I) be responsible for the costs without limitation, calculation of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 thereunderNet Revenues), 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 Landl.
Appears in 1 contract
Statements. Tenant shall furnish or cause to be furnished A reasonably detailed statement (the following to Landlord:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a"Statement") of the Code)) 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 CEC:
(A) annual financial statements audited Direct Expenses actually payable by CEC’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 CEC, including the report thereon by such Accountant which Tenant shall be unqualified as given to scope of audit of CEC and its Subsidiaries and shall provide in substance that Tenant within one hundred eighty (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (25180) days after the end of each calendar month the following items as they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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 (year or as soon thereafter as may be reasonably possiblepracticable. If Tenant's Percentage Share of any Direct Expenses as shown on such Statement is greater or less than the total amount actually paid by Tenant during the calendar year covered by such Statement, then within thirty (30) days thereafter, Tenant shall pay in cash any sums owed to Landlord or, if applicable, Tenant shall receive a credit against any Rent next accruing for any sum owed Tenant. If, as of the thirtieth (30th) day after delivery to Tenant of a Statement, Tenant shall not have delivered to Landlord an Objection Notice (as defined below), then such Statement shall be final and binding upon Landlord and Tenant, and Tenant shall have no further detailed information reasonably available right to object to such Statement. If within such thirty (30) day period, Tenant delivers to Landlord a written statement specifying objections to such Statement (an "Objection Notice"), then Tenant and Landlord shall meet to attempt to resolve such objection within thirty (30) days after delivery of the Objection Notice. Landlord shall provide access for Tenant to review its pertinent records, during the thirty (30) day period after delivery to Tenant with respect of a Statement, during regular business hours in Landlord's management office for the Building. Notwithstanding that any such dispute remains unresolved, Tenant shall be obligated 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 pay Landlord all Rent payable in accordance with Section 22.3;
this Lease (xvii) Any notices or reporting required pursuant including any disputed amount). If such dispute results in an agreement that Tenant is entitled 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; and
(xix) In connection with any Fee Mortgagee Securitizationa refund, Tenant Landlord shall, upon at its option, either pay such refund or credit the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect amount thereof to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, Tenant Basic Monthly Rent next becoming due from Tenant. The failure 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;
(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 delay by Landlord to be reviewed by provide Tenant with Landlord’s estimate of Tenant, which portions shall be limited to ’s Percentage Share of Direct Expenses or a Statement for any portions relating solely to Tenant Information; provided that, except with respect to the Existing Fee Mortgage, such Disclosure Document calendar year shall not contain any Tenant Information (other than Tenant Information described on Exhibit M hereto) that includes any material non-public informationconstitute a default by Landlord hereunder, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to waiver by Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents Tenant’s obligation to pay Tenant’s Percentage Share of Direct Expenses for such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days calendar year or of Landlord’s written request thereforright to send to Tenant such an estimate or Statement, as the case may be. The Financial Statements provided pursuant to Section 23.1(b)(iii) If the Term of this Lease expires or is terminated on a day other than the last day of a calendar year, the amount of Direct Expenses payable by Tenant during the calendar year in which the Term expires or is terminated shall be prepared prorated on the basis which the number of days from the commencement of the calendar year to and including the date on which the Term expires or is terminated bears to three hundred sixty-five (365). Within one hundred twenty (120) days following expiration of the calendar year in compliance with applicable federal securities lawswhich the Term expired or terminated, including Regulation S-X or as soon thereafter as practicable, Landlord shall give a final Statement to Tenant for such calendar year (and for "Final Statement"). If Tenant's share of any prior periods required thereunder)Direct Expenses as shown on the Final Statement is greater or less than the total amounts of Direct Expenses actually paid by Tenant during the calendar year covered by the Final Statement, if and then within thirty (30) days thereafter the appropriate party shall pay to the extent such compliance with federal securities laws, including Regulation S-X (and for other party any prior periods required thereunder), is required to enable Landlsums owed.
Appears in 1 contract
Sources: Office Lease (Looksmart LTD)
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 SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Available Collection Amount and the applicable prior year Fiscal Quarter, in each case, to Regular Payment Amount for the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 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)loan 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, in all material respects, default or imminent default;
(xvi) 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 scheduled principal payments and the absence principal prepayments received with respect to the Home Loans during the related Due Period;
(xvii) the number of footnotes), all of which shall be provided Home Loans remaining in the Home Loan Pool;
(xxviii) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018)Cumulative Losses; and
(Cxix) such additional other information as may be reasonably requested by the Indenture Trustee, the Issuer or the Residual Interest Certificateholder.
(2) No later than two (2) Business Days before each Payment Date, the Indenture Trustee shall prepare and unaudited quarterly financial 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) as a result of such Deleted Home Loans being Defective Home Loans, from the Closing Date through the most current Due Period.
(3) No later than 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 (if applicable) 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 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 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries fully rely upon and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 have no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue liability with respect to such information provided by the Facility with respect to the prior Lease Year (subject to 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 the 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 (or Manager) 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 such Payment Date and a statement setting forth the Facility)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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 Indenture Trustee shall prepare and distribute to each Person who at any time during the calendar year was the Holder of a Security, such information as they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee MortgageSecurities, which 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 agent and the Holder of the Certificates, whether or not provided for herein, as shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix))necessary, reasonably cooperate with Landlord in providing information reasonable, or appropriate with respect to the PropertySecurityholders, 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;
(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, except otherwise with respect to the Existing Fee Mortgagepurposes of this Agreement, all such Disclosure Document reports or information to be provided by and in accordance with such applicable instructions and directions as the Securityholders may reasonably require.
(h) Reports and computer tapes furnished by the Servicer and the Indenture Trustee pursuant to this Agreement shall be deemed confidential and of proprietary nature, and 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 be copied or any information subject to bona fide confidentiality restrictions; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, distributed except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant purposes and requirements of this Agreement. No Person entitled to receive copies of such reports or tapes shall (I) be responsible use the information therein for the costs purpose of soliciting the customers of the Existing Fee Mortgagee in connection therewith to Seller or the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord Servicer or for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared other 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 Landlthis Agreement.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Bear Stearns Asset Backed Securities Inc)
Statements. Tenant (a) No later than each Determination Date, the Servicer shall furnish or cause deliver to the Trustee (and any FHA Claims Administrator), by facsimile, the receipt and legibility of which shall be confirmed telephonically, and with hard copy thereof to be furnished delivered no later than one (1) Business Day after such Determination Date, the Servicer's Monthly Remittance Report, setting forth the date of such Report (day, month and year), the Series designation of the Certificates (i.e. "Series 199__-__"), and the date of this Agreement. Furthermore, no later than each Determination Date, the Servicer shall deliver to the Trustee a magnetic tape or computer disk providing such information regarding the Servicer's activities in servicing the Mortgage Loans during the related Due Period as the Trustee may reasonably require.
(b) On each Remittance Date, the Servicer shall prepare and the Trustee shall distribute a monthly statement (the "SERVICER'S MONTHLY STATEMENT") to the Depositor, the Certificateholders, the Beneficial Owners (who have notified the Trustee by delivery of an Investment Letter to the Trustee), the Certificate Insurer, the Rating Agencies and any FHA Claims Administrator, stating the date of original issuance of the Certificates (day, month and year), the series designation of the Certificates (i.e. "Series 199__-__"), the date of this Agreement and the following to Landlordinformation:
(i) As to SPE Tenant: the Available Remittance Amount for the related Remittance Date;
(aii) Within ninety (90) days after the end Class Principal Balance of each Fiscal Year (commencing with Class of Certificates, exclusive of the Fiscal Year ending December 31, 2017), annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheetClass R Certificates, and statement the Pool Principal Balance (including, until the Funding Period ends, the amount remaining in the Pre- Funding Account and the Capitalized Interest Account as of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (bRemittance Date) within sixty (60) days after the end of each as of the first three Fiscal Quarters day of the related Due Period and after giving effect to distributions made to the Holders of such Certificates on such Remittance Date;
(iii) the Class Pool Factor with respect to each Fiscal Year Class of Certificates, exclusive of the Class R Certificates, then outstanding;
(commencing iv) the amount of principal and interest received on the Conventional Mortgage Loans and the Title I Mortgage Loans during the related Due Period;
(v) the Principal Remittance Amount, the Interest Remittance Amount, the Interest Carry-Forward Amount, the Principal Carry-Forward Amount and the amount of any losses allocated to Certificateholders pursuant to Section 6.10, if any, with respect to each Class of Certificates, exclusive of the Fiscal Quarter ending March 31Class R Certificates, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of then outstanding;
(vi) whether a statement of profit and loss, a balance sheetClass R Distribution Trigger has occurred on such Remittance Date, and statement if so, the amount of cash flowsany Excess Spread or any other amount to be distributed to the Class R Certificateholders on such Remittance Date;
(vii) the Servicing Fees, plus a calculation of EBITDAR for such Fiscal Quarter the Trustee Fees, the Custodian Fees, the REMIC Administrative Fee, if any, the Certificate Insurer Premium and the applicable prior year Fiscal Quarteramounts deposited to the FHA Insurance Premium Deposit Amount;
(viii) the FHA Insurance Amount before and after such Remittance Date, and the aggregate number of FHA Claims submitted, the aggregate principal balance of all the Mortgage Loans relating to FHA Claims finally rejected by the FHA and the amount of FHA Insurance Proceeds received, in each case, to during the extent required as an Additional Fee Mortgagee Requirementrelated Due Period, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 cumulative amount of footnotes)FHA Insurance Proceeds received since the Closing Date;
(iiix) As to CEOC:
(A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering the Class A Overcollateralization on such Fiscal Year and containing statement Remittance Date, the Required Class A Overcollateralization Level as of profit and losssuch Remittance Date, 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 Net Loan Losses incurred during the dates indicated related Due Period and the results cumulative Net Loan Losses as 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)Remittance Date;
(Bx) quarterly unaudited financial statementsthe weighted average maturity of the Conventional Mortgage Loans and the Title I Mortgage Loans and the weighted average Mortgage Loan Interest Rate of the Conventional Mortgage Loans and the Title I Mortgage Loans;
(xi) certain performance information, consisting including delinquency and foreclosure information with respect to the Conventional Mortgage Loans and the Title I Mortgage Loans, as set forth in the Servicer's Monthly Remittance Report;
(xii) the amount of a statement any Guaranteed Payment included in the amounts distributed on such Remittance Date;
(xiii) as identified with respect to the applicable Class of profit and lossInsured Certificates, a balance sheet, and statement the amount 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 Certificate Insurer Reimbursement Amount to be taken with respect theretodistributed to the Certificate Insurer on such Remittance Date and the amount of any Certificate Insurer Reimbursement Amount remaining unsatisfied following such distribution;
(xiv) the number of and aggregate Principal Balance of all Mortgage Loans in foreclosure proceedings (other than any Mortgage Loans described in clause (xv)) and the percent of the aggregate Principal Balances of such Mortgage Loans to the aggregate Principal Balances of all Mortgage Loans, all as of the close of business on the first day of the related Due Period;
(xv) the number of and the aggregate Principal Balance of the Mortgage Loans in bankruptcy proceedings (Bother than any Mortgage Loans described in clause (xiv)) certifying that and the percent of the aggregate Principal Balances of such Financial Statements fairly presentMortgage Loans to the aggregate Principal Balances of all Mortgage Loans, in all material respectsas of the close of business on the first day of the related Due Period;
(xvi) the number of REO Properties, the financial position and results aggregate Principal Balance of operations the related Mortgage Loans, the book value of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments such REO Properties and the absence percent of footnotes)the aggregate Principal Balances of such Mortgage Loans to the aggregate Principal Balances of all Mortgage Loans, all of which shall be provided (x) within sixty (60) days after the end of each as of the close of business on the first three Fiscal Quarters day of each Fiscal Year the related Due Period;
(commencing with xvii) the Fiscal Quarter ending March 31, 2018)aggregate Principal Balance of Mortgage Loans that became Defaulted Mortgage Loans and the aggregate Principal Balance of Mortgage Loans that became Liquidated Mortgage Loans during the related Due Period; and
(Cxviii) such additional the cumulative aggregate Principal Balance of Mortgage Loans that became Defaulted Mortgage Loans and the cumulative aggregate Principal Balance of Mortgage Loans that became Liquidated Mortgage Loans from the Closing Date through the most current Due Period. All reports prepared by the Servicer 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 statementsTrustee by the Servicer, and statements of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT the Trustee 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries fully rely upon and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 have no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue liability with respect to such information provided by the Facility with respect to the prior Lease Year (subject to 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 the 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 (or Manager) 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 Servicer shall prepare and the Trustee shall distribute to each Person who at any time during the calendar year was a Certificateholder, exclusive of depreciation and any improvements theretothe Class R Certificateholders, 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)(iv) and (v) 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 provided by the Servicer to the Trustee or the Certificateholders pursuant to any requirements of the Code as are in force from time to time.
(viid) Within three (3) Business Days of obtaining actual knowledge On each Remittance 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 Class A Certificates and 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 Class B Certificates in respect of such Remittance Date and a statement setting forth the Facility)amounts actually distributed to such Class R Certificateholders on such Remittance 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 (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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 Servicer shall prepare and the Trustee shall distribute 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 they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 provided by the Servicer to the Trustee and a summary then to the Certificateholders pursuant to any requirements of all leasing activity then taking place at the Facility;Code as are in force from time to time.
(xiiif) Operating budget for Upon reasonable advance notice in writing, the Servicer will provide to each SPE Tenant for each Fiscal Yearholder of a Class A Certificate or a Class B Certificate 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 Certificateholder 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 Certificates.
(xvg) The quarterly reporting Servicer or its agent shall furnish to the Trustee, who in respect of Bookings required pursuant turn shall forward to Section 22.7 each Certificateholder, 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee MortgageCertificates, which including Internal Revenue Service Forms 1099 and (if instructed in writing by the Depositor on the basis of the advice of legal counsel) Form 1066, Schedule Q and other similar reports that are required to be filed by the Servicer or its agent and the Class R Certificateholders, whether or not provided for herein, as shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix))necessary, reasonably cooperate with Landlord in providing information reasonable, or appropriate with respect to the PropertyCertificateholder, 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;
(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, except otherwise with respect to the Existing Fee Mortgagepurposes of this Agreement, all such Disclosure Document reports or information to be provided by and in accordance with such applicable instructions and directions as the Certificateholder may reasonably require.
(h) Reports and computer tapes furnished by the Servicer and the Trustee pursuant to this Agreement shall be deemed confidential and of proprietary nature, and 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 be copied or any information subject to bona fide confidentiality restrictions; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, distributed except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant purposes and requirements of this Agreement. No Person entitled to receive copies of such reports or tapes shall (I) be responsible use the information therein for the costs purpose of soliciting the customers of the Existing Fee Mortgagee in connection therewith to Depositor or the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord Servicer or for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared other 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Remodelers Investment Corp)
Statements. Tenant Not later than 12:00 noon Chicago, Illinois time on the Business Day preceding each Determination Date, the Servicer shall furnish deliver to the Trustee and the Certificate Insurer a computer tape or cause written report containing the information set forth on ExhibitR as to each Mortgage Loan with respect to the related Due Period and such other information with respect to the Mortgage Loans in the aggregate as the Trustee shall reasonably require. Not later than 12:00 noon Chicago, Illinois time two Business Days preceding each Payment Date, the Trustee shall deliver to the Depositors, any Paying Agent, the Servicer, the Certificate Insurer, Moody's and S&P by telecopy, by request, a statement (the "Remittance Report") containing the information set forth below with respect to the succeeding Payment Date, with a hard copy thereof to be furnished delivered on the following to Landlordimmediately succeeding Business Day:
(i) As the Available Payment Amount attributable to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year Mortgage Loan Group and containing statement of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each any portion of the first three Fiscal Quarters of each Fiscal Year (commencing with Available Payment Amount that has been deposited in the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting Collection Account but may not be withdrawn therefrom pursuant to an order of a statement United States bankruptcy court of profit and losscompetent jurisdiction imposing a stay pursuant to Section 362 of the United States Bankruptcy Code;
(▇▇) ▇▇▇ ▇▇▇▇▇ ▇-▇ ▇▇▇▇▇▇▇▇▇ Balance, a balance sheetthe Class A-2 Principal Balance, and statement of cash flowsthe Class A-3 Principal Balance, plus a calculation of EBITDAR for such Fiscal Quarter the Class A-4 Principal Balance, the Class A-5 Principal Balance, the Class A-6 Principal Balance, the Class A-7 Principal Balance, the Class A-8 Principal Balance, the Class A-9 Principal Balance, the Class A-10 Principal Balance and the applicable prior year Fiscal QuarterPool Principal Balance with respect to each Mortgage Loan Group, as reported in each casethe Remittance Report provided pursuant to subclause (xiii) below for the immediately preceding Payment Date, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subjector, in the case of quarterly financial statementsthe first Determination Date, the Original Class A-1 Principal Balance, the Original Class A-2 Principal Balance, the Original Class A-3 Principal Balance, the Original Class A-4 Principal Balance, the Original Class A-6 Principal Balance, the Original Class A-7 Principal Balance, the Original Class A-8 Principal Balance, the Original Class A-9 Principal Balance, the Original Class A-10 Principal Balance and the Original Pool Principal Balance with respect to each Mortgage Loan Group;
(iii) with respect to the Mortgage Pool and each Mortgage Loan Group, the number and Principal Balances of all Mortgage Loans which were the subject of Principal Prepayments during the related Due Period;
(iv) with respect to the Mortgage Pool and each Mortgage Loan Group, the amount of all Curtailments which were received during the related Due Period;
(v) with respect to the Mortgage Pool and each Mortgage Loan Group, the aggregate amount of principal portion of all Monthly Payments received during the related Due Period;
(vi) with respect to the Mortgage Pool and each Mortgage Loan Group, the amount of interest received on the Mortgage Loans during the related Due Period;
(vii) with respect to the Mortgage Pool and each Mortgage Loan Group, the aggregate amount of the Advances made and recovered with respect to such Payment Date;
(viii) with respect to the Mortgage Pool and each Mortgage Loan Group, the delinquency and foreclosure information set forth in the form attached hereto as ExhibitH and the amount of Mortgage Loan Losses during the related Due Period;
(ix) the Class A-1 Principal Balance, the Class A-2 Principal Balance, the Class A-3 Principal Balance, the Class A-4 Principal Balance, the Class A-5 Principal Balance, the Class A-6 Principal Balance, the Class A-7 Principal Balance, the Class A-8 Principal Balance, the Class A-9 Principal Balance and the Class A-10 Principal Balance after giving effect to the distribution to be made on such Payment Date;
(x) with respect to the Mortgage Pool and each Mortgage Loan Group, the weighted average maturity and the weighted average Mortgage Interest Rate of the Mortgage Loans in each Mortgage Loan Group as of the last day of the related Due Period;
(xi) the Servicing Fees paid and Servicing Fees accrued during the related Due Period;
(xii) the amount of all payments or reimbursements to the Servicer pursuant to Section 5.04 (ii), (iv), (v), (vi) and (vii) paid or to be paid since the prior Payment Date (or in the case of the first Payment Date, since the Closing Date);
(xiii) the Pool Principal Balance and aggregate Principal Balance for each Mortgage Loan Group as of the last day of the related Due Period;
(xiv) such other information as the Certificate Insurer, each Account Party and the Certificateholders may reasonably require;
(xv) the amounts which are reimbursable to the Servicer, the Representative or the Depositors, as appropriate, pursuant to Section 6.05;
(xvi) with respect to the Mortgage Pool and each Mortgage Loan Group, the number of Mortgage Loans outstanding at the beginning and at the end of the related Due Period;
(xvii) the aggregate interest accrued on the Mortgage Loans at their respective Mortgage Interest Rates for the related Due Period;
(xviii) [Reserved]
(xix) the Subordinated Amount, the amount on deposit in the Spread Account, the Cumulative Excess Spread Receipts, in each case after giving effect to any payments or withdrawals on such Payment Date, and with respect to the Mortgage Pool and each Mortgage Loan Group, the Excess Spread with respect to such Payment Date;
(xx) the aggregate Mortgage Loan Losses since the Cut-off Date as of the end of the related Due Period; and
(xxi) [Reserved] The Trustee shall forward such report to the Certificateholders on the Payment Date, by telecopy, with a hard copy to follow (in the case of the Depository) or by first class mail. The Depositors and the Trustee may fully rely upon and shall have no liability with respect to information 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 and the Trustee may rely upon the telecopy. In the case of information furnished pursuant to subclauses (ii) and (ix) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each of the Class A Certificates for each $1,000 original dollar amount as of the Cut-off Date.
(a) Upon reasonable advance notice in writing, the Servicer will provide to the Trustee access to information and documentation regarding the Mortgage Loans sufficient to permit any Holder which is a savings and loan association, bank or insurance company to comply with applicable regulations of the FDIC or other regulatory authorities with respect to investment in the Certificates, as applicable.
(b) The Servicer shall furnish to the Trustee and to the Certificate Insurer, during the term of this Agreement, such periodic, special, or other reports or information not specifically provided for herein, as may be necessary, reasonable, or appropriate with respect to the Trustee or the Certificate Insurer, as the case may be, 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 Trustee or the Certificate Insurer may reasonably require; provided, that the Servicer shall be entitled to be reimbursed by the requesting party, for the fees and actual expenses associated with providing such reports, if such reports are not generally produced in the ordinary course of its business.
(c) Reports and computer tapes furnished by the Servicer pursuant to this Agreement shall be deemed confidential and of proprietary nature, and shall not be copied or distributed except in connection with the purposes and requirements of this Agreement; provided that the Certificate Insurer may copy or distribute such information (A) pursuant to a subpoena or order issued by a court of competent jurisdiction or by a judicial or administrative or legislative body or committee, (B) as may be required in any report, statement or testimony submitted to any Federal, state, municipal or other regulatory body having jurisdiction over the Certificate Insurer, (C) in order to comply with any law, ruling, order or regulation applicable to the Certificate Insurer, or (D) as may be required by any rating agency or reinsurer. No Person entitled to receive copies of such reports or tapes shall use the information therein for the purpose of soliciting the customers of the Originators or for any other purpose except as set forth in this Agreement.
(d) The Trustee shall promptly send to the Certificate Insurer and, upon request, to normal year-end audit adjustments and each Certificateholder in writing:
(i) notice of any reduction in the absence of footnotes)Specified Spread Account Requirement;
(ii) As to CEOC:notice of any reduction of the percentages set forth in the definition of "Monthly Excess Spread Amount";
(Aiii) annual financial statements audited by CEOC’s Accountant notice of the appointment of any Subservicer;
(iv) notice of any transfer of any Account to a different depository institution;
(v) notice of any reduction in accordance with GAAP covering such Fiscal Year and containing statement the rating of profit and loss, a balance sheet, and statement any Letter 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 Credit Bank below the minimum ratings described 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, 2017Section 6.11(b);
(Bvi) quarterly unaudited financial statements, consisting a copy of each Officer's Certificate delivered pursuant to Section 7.04 and any notice received from the Servicer of a statement change in the fiscal year of profit and loss, the Servicer;
(vii) 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 copy of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018)letter delivered pursuant to Section 7.05; and
(Cviii) notice of the receipt by the Trustee of any information regarding the Servicer's servicing activities pursuant to the last paragraph of Section 10.01(c); provided, that in each case the Trustee shall only be required to send such additional information notices and unaudited quarterly financial information concerning other items to such Persons to the Leased Property and Tenantextent that the Trustee has itself received the related information. The Depositors, 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 Servicer and the Exchange ActTrustee on behalf of Certificateholders (the "Trust Parties") hereby authorize the Certificate Insurer to include the information contained in reports provided to the Certificate Insurer hereunder (the "Information") on The Bloomberg, an on-line computer based information network maintained by Bloomberg L.P. ("Bloomberg"), or in other electronic or print information services. The Trust Parties agree not to commence any actions or proceedings, or otherwise assert any claims, against the Certificate Insurer or its affiliates or any of the Certificate Insurer's or its affiliates' respective agents, representatives, directors, officers or employees (collectively, the "Certificate Insurer Parties"), arising out of, or related to or in connection with the dissemination and/or use of any Information by the Certificate Insurer, including, but not limited to, claims based on allegations of inaccurate, incomplete or erroneous transfer of information by the Certificate Insurer to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo Bloomberg or Landlord REIT during the Term of this Lease, otherwise (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’s Accountant than in connection with the Certificate Insurer's negligence or willful misconduct). The Trust Parties waive their rights to assert any such Financial Statements has been made claims against the Certificate Insurer Parties and fully and finally release the Certificate Insurer Parties from any and all such claims, demands, obligations, actions and liabilities (other than in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing connection with the Fiscal Year ending December 31Certificate Insurer's negligence or willful misconduct). The Certificate Insurer makes no representations or warranties, 2017);
(B) quarterly unaudited financial statementsexpressed or implied, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 kind whatsoever with respect to the Facility with respect accuracy, adequacy, timeliness, completeness, merchantability or fitness for any particular purpose of any Information in any form or manner. The Certificate Insurer reserves the right at any time to withdraw or suspend the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect dissemination of the periodic determination Information by the Certificate Insurer. The authorizations, covenants and obligations 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 Trust Parties under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of the 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 (or Manager) 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which section shall be limited to balance sheets irrevocable and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or shall survive the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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 termination 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlAgreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Eqcc Asset Backed Corp)
Statements. Tenant (a) No later than each Determination Date, the Servicer shall furnish deliver to the Indenture Trustee (i) a printed report setting forth the payments and collections received with respect to the Loans during the Due Period for the month immediately preceding the month in which such Determination Date occurs (each such tape, a "Servicer Remittance Report") and (ii),if not included in the Servicer Remittance Report, a printed report and an electromagnetic tape in computer readable format, setting forth the information described in clauses (A) --(I) of Section 6.1(b) for the month immediately preceding the month in which such Determination Date occurs (such report, a "Delinquency Report"). Furthermore, no later than each Determination Date, the Servicer shall deliver to the Indenture Trustee a magnetic tape or cause computer disk providing such information regarding the Servicer's activities in servicing the Loans during the related Due Period as the Indenture Trustee may reasonably require.
(b) On each Distribution Date, Indenture Trustee shall distribute, based on information provided by the Servicer, a monthly statement (the "Distribution Statement"), to be furnished the Depositor, the Securityholders and the Rating Agencies, stating the date of original issuance of the Securities (day, month and year), the name of the Issuer (i.e. "_______________ Trust ____________"), the series designation of the Notes (i.e., "Series ___________"), the date of this Agreement and the following to Landlordinformation:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with Available Collection Amount and Available Distribution Amount for the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 the Class Principal Balance of each Class of Notes before and after giving effect to CEOC:
(A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering distributions made to the holders of such Fiscal Year and containing statement of profit and loss, a balance sheetSecurities on such Distribution Date, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified the Pool Principal Balance 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) last day of the Code)) 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) belowrelated Due Period;
(iii) As the Class Factor with respect to CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Class of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowthen outstanding;
(iv) As soon as it is prepared the amount of principal and in no event later than sixty (60) days after interest received on the end of each Fiscal Year, a statement of Net Revenue with respect to Loans during the Facility with respect to the prior Lease 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 with respect to Landlord 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 TenantNotes, 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 the 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 (or Manager) from (or to) any Gaming Authorities)Optimal Principal Balance thereof;
(vi) Within ten (10) Business Days after the end of each calendar monthOvercollateralization Deficiency Amount, 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 amount to be distributed to 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 Noteholders or the fixed asset methodology for propco-opco separation used as holders of the Commencement Residual Interests on such Distribution Date;
(vii) Within three (3) Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of Servicing Compensation, the occurrence of any facts or circumstances whichIndenture Trustee Fee, 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 the 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) Owner Trustee Fee and the actions Tenant has taken or shall take, if any, to remedy Custodial Fee for such Tenant Event of Default (or such facts or circumstances)Distribution Date;
(viii) Such additional customary the Overcollateralization Amount on such Distribution Date, the Overcollateralization Target Amount as of such Distribution Date, the Net Loan Losses incurred during the related Due Period, the cumulative Net Loan Losses as of such Distribution Date and reasonable financial information related to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 SPE Tenant: (A) a rent roll Allocable Loss Amount for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, in the form attached hereto as Exhibit IDistribution Date;
(ix) The compliance certificates, as the weighted average maturity of the Loans and when required pursuant to Section 4.3the weighted average Loan Interest Rate of the Loans;
(x) The Annual Capital Budget certain performance information, including delinquency and foreclosure information with respect to the Loans, as and when required set forth in Section 10.5;the Servicer's Monthly Remittance Report; and
(xi) The monthly revenue and Capital Expenditure reporting required the Pre-Funding Amount at the end of the related Due Period. In addition, on each Distribution Date the Indenture Trustee shall distribute to each Securityholder, together with the information described above, the following information based solely upon information provided to the Indenture Trustee pursuant to Section 10.5(b);
(xii6.1(a) Together with upon which 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 the 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 Indenture Trustee 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlordconclusively rely without independent verification:
(A) at the sole cost number and expense of Landlord aggregate Principal Balance (except with respect including the percentage equivalent relative to the Existing Fee Mortgage, which shall be at the sole cost and expense aggregate Principal Balance of Tenant as provided in the final sentence all Loans) of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, Tenant or its Affiliates (excluding Loans (i) any material non30-public information59 days delinquent, (ii) any Competitively Sensitive Information, 60-89 days delinquent and (iii) any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M 90 days or more delinquent (which statistics shall not be so excluded even if such information qualifies within clauses (iinclude Loans in foreclosure and bankruptcy but which shall exclude Foreclosure Properties), (ii) or (iii) as of this parenthetical), to the extent reasonably requested by close of business on the last day of the calendar month next preceding such Fee Mortgagee in order to satisfy Distribution Date and the market standards to which aggregate Principal Balances of all Loans as of such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agenciesdate;
(B) reviewthe number of, re-review andand aggregate Principal Balance of, 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, except with respect to the Existing Fee Mortgage, such Disclosure Document shall not contain any Tenant Information all Loans in foreclosure proceedings (other than Tenant Information any Loans described in clause (C)) and the percent of the aggregate Principal Balances of such Loans to the aggregate Principal Balances of all Loans, all as of the close of business on Exhibit M hereto) that includes any material non-public information, Competitively Sensitive Information or any information subject to bona fide confidentiality restrictions; andthe last day of the calendar month next preceding such Distribution Date;
(C) with respect to the Existing Fee Mortgagenumber of, deliver a certification to Landlord and the aggregate Principal Balance of, the related Loans in bankruptcy proceedings (i) certifying that the information set forth other than any Loans described in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B)) does not at and the time furnished contain percent of the aggregate Principal Balances of such Loans to the aggregate Principal Balances of all Loans, all as of the close of business on the last day of the calendar month next preceding such Distribution Date;
(D) the number of Foreclosure Properties, the aggregate Principal Balances of the related Loans, the book value of such Foreclosure Properties and the percent of the aggregate Principal Balances of such Loans to the aggregate Principal Balances of all Loans, all as of the close of business on the last day of the calendar month next preceding such Distribution Date;
(E) for each Foreclosure Property, the Principal Balance of the related Loan, the loan number of such Loan, the value of the Mortgaged Property, the value established by any untrue statement new appraisal, the estimated cost of disposing of the Loan and the amount of any material fact and unreimbursed Servicing Advances;
(iiF) certifying as to for each Loan which is in foreclosure, the accuracy Principal Balance of such Loan, the book value of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L Mortgaged Property, the combined loan-to-value ratio as of the date of origination, the closing combined loan-to-value ratio as of the close of business on the last day of the calendar month next preceding such Distribution Date and the last paid-to-date;
(G) the principal balance of each Loan that was modified or extended pursuant to the terms hereof;
(H) during the related Due Period, the number of and aggregate Principal Balance and the loan numbers of Loans for each of the following: (A) that became Liquidated Loans, (B) that became Defective Loans pursuant to Section 3.5 as a result of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific dateDefective Loans being Defective Loans, and (yC) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall that became Defaulted Loans;
(I) be responsible from the Closing Date through the most current Due Period, the number of and cumulative aggregate Principal Balance of Loans for the costs each of the Existing Fee Mortgagee in connection therewith following: (A) that became Liquidated Loans, (B) that became Defective Loans pursuant to the extent Landlord is required under the Existing Fee Mortgage Documents to pay Section 3.5 as a result of such costsDeleted Home loans being Defective Loans, and (IIC) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided that became Defective Loans pursuant to Section 23.1(b)(iii) shall be prepared 3.5 as a result of such Defective Loans being Defaulted Loans or a Loan in compliance with applicable federal securities lawsdefault or imminent default, including Regulation S-X the foregoing amounts by loan type (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 Landli.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Residential Asset Funding Corp)
Statements. Tenant Not later than 12:00 noon California time on the fourth Business Day following the last day of a Due Period, the Servicer shall furnish or cause deliver to the Trustee a computer tape containing the information set forth on Exhibit D as to each Mortgage Loan as of such Due Period and such other information as the Trustee shall reasonably require. Not later than 12:00 noon California time on the Determination Date, the Trustee shall make available to the Servicer, the Depositor and to the Certificate Insurer by telecopy, and on the Distribution Date via its website, a statement (the “Trustee’s Remittance Report”) containing the information set forth below (to the extent any such information to be furnished delivered by the following Servicer pursuant to Landlordthe first sentence of this Section 5.01(a) has been so delivered) with respect to such Distribution Date:
(i) As to SPE Tenant: The Available Funds and the Class A Certificate Rate for the related Distribution Date;
(aii) Within ninety (90) days after The Class A Principal Balance and the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each Aggregate Principal Balance of the first three Fiscal Quarters of each Fiscal Year Mortgage Loans as reported in the prior Trustee’s Remittance Report pursuant to subclause (commencing with the Fiscal Quarter ending March 31xii) below, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 Original Class A Certificate Balance 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);
(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 yearrelated Cut-end audit adjustments and the absence of footnotes), all of which shall be provided (x) within sixty (60) days after the end of each Off Date Principal Balance of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowMortgage Loans;
(iii) As to CEC:
(A) annual financial statements audited by CEC’s Accountant in accordance with GAAP covering such Fiscal Year The number and containing statement Principal Balances of profit all Mortgage Loans and loss, a balance sheet, and statement of cash flows for CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters Mortgage Loans, that were the subject of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 Principal Prepayments during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowDue Period;
(iv) As soon as it is prepared and in no event later than sixty (60) days after The amount of all Curtailments that were received during the end of each Fiscal Year, a statement of Net Revenue with respect to the Facility with respect to the prior Lease Year (subject to 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 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 The principal portion of all or any portion of Monthly Payments 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 the 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 (or Manager) from (or to) any Gaming Authorities)Due Period;
(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 The amount of depreciation interest received on the Mortgage Loans;
(vii) The amount of the Monthly Advances and any improvements thereto, substantially the Compensating Interest payment to be made on the Determination Date;
(viii) The delinquency and foreclosure information set forth 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, in the form attached hereto as Exhibit IL;
(ix) The compliance certificates, as and when required pursuant to Section 4.3Remittance Amount for the Class A Certificates for the Distribution Date with the components thereof stated separately;
(x) The Annual Capital Budget as and when required in Section 10.5amount of the Insured Amounts, if any, to be paid on the Distribution Date;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant amount to Section 10.5(b)be distributed to the Class R Certificateholders for the Distribution Date;
(xii) Together with The Class A Principal Balance and the monthly reporting required pursuant Aggregate Principal Balance of the Mortgage Loans, each after giving effect to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at distribution to be made on the FacilityDistribution Date;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered The weighted average remaining term to Landlord no later than fifty-five (55) days following the commencement maturity of the Fiscal Year to which such operating budget relatesMortgage Loans and the weighted average Loan Rate;
(xiv) Within five (5) Business Days after request (or as soon thereafter as may The Servicing Fee, the Trustee Fee and the amount to be reasonably possible), such further detailed information reasonably available paid to Tenant with respect the Certificate Insurer pursuant to each SPE Tenant as may be reasonably requested by LandlordSection 5.01;
(xv) The quarterly reporting in respect amount of Bookings required all payments or reimbursements to the Servicer pursuant to Section 22.7 of this Lease3.03;
(xvi) The reporting/copies of Subleases made by Tenant Pool Factor determined using the balances in accordance with Section 22.3subclause (ii) above;
(xvii) Any notices or reporting required The amount, if any, transferred from the Spread Account to the Distribution Account pursuant to Article XXXII hereof or otherwise pursuant to any other provision of this LeaseSection 4.01;
(xviii) The monthly reporting required percentage of the Excess Spread used to determine the Monthly Excess Spread Amount, the Spread Account Excess and the allocation of the Spread Account Excess to Reimbursable Amounts, Monthly Advances and Class R Certificateholders pursuant to Section 4.1 hereof4.01;
(xix) The amounts which are reimbursable to the Servicer or the Seller, as appropriate, pursuant to Section 5.01(a)(iv) and the amount paid to Class R Certificateholders pursuant to Section 5.01(a)(viii);
(xx) The number of Mortgage Loans outstanding at the beginning and at the end of the related Due Period;
(xxi) The amount on deposit in the Spread Account after the Distribution Date;
(xxii) The amount of losses experienced on the Mortgage Loans during the preceding Due Period and the cumulative losses for the Mortgage Loans as a percentage of the related Cut-Off Date Principal Balance;
(xxiii) The amount of Class A Available Funds Cap Carryforward distributed to the Class A Certificates from the Basis Risk Reserve Fund, stating separately any amounts received from the Corridor Contract Counterparty with respect to the Corridor Contract and the amount of Class A Available Funds Cap Carryforward remaining if any;
(xxiv) The amount on deposit in the Basis Risk Reserve Fund, the Required Basis Risk Reserve Fund Deposit and the amount of any withdrawal from such Account for the Distribution Date distributed to the Class R Certificates;
(xxv) The amount of Class Interest Carryover Shortfall relating to the Class A Certificates, stating the amount that is allocable to such Class and the amount allocable to interest and principal;
(xxvi) Whether a Servicer Termination Delinquency Event or a Servicer Termination Loss Event has occurred and specifying the details thereof;
(xxvii) During the Funding Period, the amount used to acquire Subsequent Mortgage Loans since the preceding Distribution Date and the remaining Pre-Funded Amount after acquiring Subsequent Mortgage Loans; and
(xixxxviii) During the Funding Period, the amount on deposit in the Capitalized Interest Account after the Distribution Date and the Capitalized Interest Required Amount for such Distribution Date. The Trustee shall make such report available to the Servicer, the Depositor, the Certificateholders, the Certificate Insurer, the Rating Agencies and Bloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) on its internet website located at “▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇▇/invr” on the related Distribution Date. Assistance in using the website can be obtained by calling the Trustee’s investor relations desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution method are entitled to have a paper copy mailed to them via first class mail by calling the investor relations desk and indicating such. In connection addition, together with any Fee Mortgagee Securitizationsuch report, Tenant shall, the Trustee shall forward to Bloomberg a copy of the computer tape delivered by the Servicer on the Distribution Date. The Trustee may fully rely upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except shall have no liability with respect to information provided by the Existing Fee Mortgage, which shall be at Servicer. To the sole cost extent that there are inconsistencies between the copy of the Trustee’s Remittance Report posted on its website and expense of Tenant as provided in the final sentence of this clause hard copy issued upon request (xix)), reasonably cooperate with Landlord in providing information with respect pursuant to the Propertypreceding paragraph) thereof, Tenant or its Affiliates (excluding (i) any material non-public information, the Servicer may rely upon the former. In the case of information furnished pursuant to subclauses (ii) any Competitively Sensitive Information, and (iiiix) 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver expressed in a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy separate section of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L report as a dollar amount for each Class for each $1,000 original dollar amount as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared in compliance with applicable federal securities laws, including Regulation SCut-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 LandlOff Date.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Lehman Home Equity Loan Trust 2004-3)
Statements. Tenant (a) No later than each Determination Date, the Servicer shall furnish deliver to the Indenture Trustee a magnetic tape or cause computer disk providing such information regarding the Servicer's activities in servicing the Home Loans during the related Due Period as the Indenture Trustee may reasonably require.
(1) Subject to be furnished the modification of the Servicer's Monthly Statement by the Servicer with the prior written consent of the Majority Securityholders and the Indenture Trustee, no later than three (3) Business Days before each Payment Date, the Servicer shall prepare and the Indenture Trustee shall distribute a monthly statement (the "Servicer's Monthly Statement", with respect to such Payment Date) to the Seller, 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., "FIRSTPLUS Home Loan Owner Trust 1998-5"), the series designation of the Securities (i.e., "Series 1998-5"), the date of this Agreement and the following to Landlordinformation:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with Available Collection Amount, the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Regular Payment Amount and the applicable prior year Fiscal Quarter, in each case, to Excess Spread for the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 Payment Date;
(ii) As the amount, if any, on deposit in the Pre-Funding Account on such Payment Date;
(iii) the Class Principal Balance of each Class of Securities (and the Component Principal Balance, as applicable, of the Components of the Residual Interest Certificate), 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;
(iv) the Class Pool Factor with respect to each Class of Securities then outstanding, carried to seven decimal places;
(v) the amount of principal and interest received on the Home Loans during the related Due Period;
(vi) the amount, if any, of the Overcollateralization Surplus;
(vii) the Servicing Compensation for such Payment Date;
(viii) the Overcollateralization Amount with respect to such Payment Date, the Required Overcollateralization Amount as of such Payment Date, the Net Loan Losses incurred during the related Due Period and the cumulative Net Loan Losses with respect to such Payment Date;
(ix) the amount, if any, paid on such Payment Date to each Class of Subordinate Securities in respect of Deferred Amounts;
(x) with respect to each Class of Subordinate Securities and the B-2 Component of the Residual Interest Certificate, the amount of any applicable Deferred Amounts remaining unreimbursed after giving effect to payments made on such Payment Date;
(xi) 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;
(xii) certain performance information, including delinquency and foreclosure information with respect to the Home Loans, as set forth in the Servicer's Monthly Remittance Report;
(xiii) the amount of any Servicing Advance Reimbursement Amount to be paid to the Servicer on such Payment Date, and the amount of any Servicing Advance Reimbursement Amount remaining unpaid following such payment;
(xiv) 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;
(xv) 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;
(xvi) 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;
(xvii) 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)loan type;
(Bxviii) quarterly unaudited financial statementsfrom the Closing 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, in all material respects, default or imminent default;
(xix) 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 scheduled principal payments and the absence principal prepayments received with respect to the Home Loans during the related Due Period;
(xx) the number of footnotes), all of which shall be provided (x) within sixty (60) days after Home Loans remaining in the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018)Home Loan Pool; and
(Cxxi) such additional other information as may be reasonably requested by the Indenture Trustee.
(2) No later than three (3) Business Days before each Payment Date, the Servicer shall prepare and unaudited quarterly financial distribute to the Seller 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) as a result of such Deleted Home Loans being Defective Home Loans, from the Closing Date through the most current Due Period.
(3) No later than seven days following a repurchase or substitution pursuant to Sections 2.06, 3.05 or 4.02, the Servicer shall notify each Rating Agency of the aggregate principal balances of the Home Loans repurchased or substituted and (if applicable) the relevant Substitution Adjustment. All reports prepared by the Servicer of the withdrawals from and deposits in the Collection Account will be based in whole or in part upon the 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 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries fully rely upon and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 have no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue liability with respect to such information provided by the Facility with respect to the prior Lease Year (subject to 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 the 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 (or Manager) 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 Servicer shall prepare and direct the Indenture Trustee to 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)(iv) and (v) 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 Securityholder. Such obligation of the Commencement Date;Indenture Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be provided by the Servicer to the Securityholders pursuant to any requirements of the Code as are in force from time to time.
(viid) Within three (3) Business Days of obtaining actual knowledge On each Payment Date, the Indenture Trustee shall forward to DTC and to the holder of the occurrence of Residual Interest Certificate a Tenant Event of Default (or copy 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 Servicer's Monthly Statement in respect of such Payment Date and a statement setting forth the Facility), a written notice amounts actually distributed to Landlord regarding the same, which notice shall include a detailed description holder of the Tenant Event of Default (Residual Interest Certificate on such Payment Date, together with such other information as the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 Servicer shall prepare and direct the Indenture Trustee to distribute to each Person who at any time during the calendar year was the holder of the Residual Interest Certificate, if requested in writing by such Person, such information as they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;Residual Interest Certificate. Such obligation of the Indenture Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be provided by the Servicer to the holder of the Residual Interest Certificate pursuant to any requirements of the Code as are in force from time to time.
(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 Servicer or its agent shall furnish to the Indenture Trustee, who in respect of Bookings required pursuant turn shall forward 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee MortgageSecurities, which including Internal Revenue Service Forms 1099 and (if instructed in writing by the Seller on the basis of the advice of legal counsel) and other similar reports that are required to be filed by the Servicer or its agent and the holder of Residual Interest Certificate, whether or not provided for herein, as shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix))necessary, reasonably cooperate with Landlord in providing information reasonable, or appropriate with respect to the PropertySecurityholders or the holders of the Residual Interest Certificate, 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;
(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, except otherwise with respect to the Existing Fee Mortgagepurposes of this Agreement, all such Disclosure Document reports or information to be provided by and in accordance with such applicable instructions and directions as the Securityholders may reasonably require.
(h) Reports and computer tapes furnished by the Servicer and the Indenture Trustee pursuant to this Agreement shall be deemed confidential and of proprietary nature, and 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 be copied or any information subject to bona fide confidentiality restrictions; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, distributed except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant purposes and requirements of this Agreement. No Person entitled to receive copies of such reports or tapes shall (I) be responsible use the information therein for the costs purpose of soliciting the customers of the Existing Fee Mortgagee in connection therewith to Seller or the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord Servicer or for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared other 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 Landlthis Agreement.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Firstplus Investment Corp)
Statements. Tenant (a) No later than each Determination Date, the Servicer shall furnish deliver to the Indenture Trustee a magnetic tape or cause computer disk providing such information regarding the Servicer's activities in servicing the Home Loans during the related Due Period as the Indenture Trustee may reasonably require. Upon a written request from the Arranger following a Conversion Event, the Servicer shall also deliver such magnetic tape or computer disk to be furnished the Arranger. No later than each Determination Date, the Servicer shall deliver to the Note Insurer a computer disk containing such information regarding the servicing of the Home Loans during the related Due Period as the Note Insurer may reasonably require.
(1) Subject to the modification of the Servicer's Monthly Remittance Report by the Servicer with the prior written consent of the Majority Noteholders and the Indenture Trustee, no later than three (3) Business Days before each Payment Date, the Servicer shall prepare and the Indenture Trustee shall distribute a monthly statement (the "Servicer's Monthly Remittance Report" with respect to such Payment Date) to the Seller, the Noteholders, the Note Insurer, the Arranger and each Rating Agency, stating the date of original issuance of the Notes (day, month and year), the name of the Issuer (I.E., "FIRSTPLUS FUNDING TRUST"), the series designation of the Notes (I.E., "Series 1997A"), the date of this Agreement and the following to Landlordinformation:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with Available Payment Amount, the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Interest Payment Amount and the applicable prior year Fiscal Quartercalculation with respect to such amount, in each case, the Principal Payment Amount and the Required Payment Amount with respect to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 Payment 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 Aggregate Note Principal Balance 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);
(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 Pool Principal Balance as of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) day of the Code)) related Due Period 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 after giving effect to Section 23.1(c) belowpayments made to the Noteholders on such Payment Date;
(iii) As to CEC:
(A) annual financial statements audited by CEC’s Accountant in accordance with GAAP covering such Fiscal Year the amount of principal and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEC, including interest received on the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 Home Loans during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowrelated Due Period;
(iv) As soon as it is prepared the Servicing Compensation and in no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue with respect to the Facility with respect to the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder)Guaranty Insurance Premium for such Payment Date;
(v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint the Overcollateralization Amount with respect to such agency or entity (any of which is called a “Proceeding”), known to TenantPayment Date, the result of which Proceeding would reasonably be expected Required Overcollateralization Amount with respect to be such Payment Date, the Net Loan Losses incurred during the related Due Period and the cumulative Net Loan Losses with respect 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 the 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 (or Manager) from (or to) any Gaming Authorities)such Payment Date;
(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 remaining on deposit in the form attached hereto as Exhibit D, Reserve Fund on such Payment Date after giving effect to the payments made to Noteholders on such Payment Date 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 the amount on deposit in accordance with the fixed asset methodology for propco-opco separation used as of Capitalized Interest Account on the Commencement related Determination Date;
(vii) Within the weighted average maturity of the Home Loans and the weighted average Home Loan Interest Rate of the Home Loans, each as of the last day of the related Due Period.
(viii) certain performance information, including delinquency and foreclosure information with respect to the Home Loans;
(ix) the amount of any Guaranteed Payment included in the amounts paid to the Noteholders on such Payment Date;
(x) the amount of any Note Insurer Reimbursement Amount to be paid to the Note Insurer on such Payment Date and the amount of any Note Insurer Reimbursement Amount remaining unsatisfied following such payment;
(xi) the amount of any Servicing Advance Reimbursement Amount to be paid to the Servicer on such Payment Date and the amount of any Servicing Advance Reimbursement Amount remaining unpaid following such payment;
(xii) the number of and aggregate Principal Balance of all Home Loans in foreclosure proceedings (other than any Home Loans described in clause (xiv)) 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 first day of the related Due Period;
(xiii) the number of and the aggregate Principal Balance of the Home Loans in bankruptcy proceedings (other than any Home Loans described in clause (xiii)) 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 first day of the related Due Period;
(xiv) 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 first day of the related Due Period;
(xv) during the related Due Period, the aggregate Principal Balance of Home Loans for each of the following: (A) that became Defaulted Home Loans, (B) that became Liquidated Home Loans, (C) that became Deleted Home Loans pursuant to Section 3.05(a) as a result of such Deleted Home Loans being Defective Home Loans, and (D) that became Deleted Home Loans pursuant to Section 2.9(c) of the Indenture as a result of such Deleted Home Loans being Defaulted Home Loans or a Home Loan in foreclosure, default or imminent default, including the foregoing amounts by loan type (I.E., Combination Loans or Debt Consolidation Loans);
(xvi) from the Closing Date through the most current Due Period, the cumulative aggregate Principal Balance of Home Loans for each of the following: (A) that became Defaulted Home Loans, (B) that became Liquidated Home Loans and (C) that became Deleted Home Loans pursuant to Section 3.05(a) as a result of such Deleted Home Loans being Defaulted Home Loans or a Home Loan in foreclosure, default or imminent default, including the foregoing amounts by loan type (I.E., Combination Loans or Debt Consolidation Loans);
(xvii) the scheduled principal payments and the principal prepayments received with respect to the Home Loans during the related Due Period;
(xviii) the number of and aggregate principal balance of all Home Loans (both during the related Due Period and in aggregate since the Closing Date) repurchased or substituted pursuant to Sections 3.05 or 4.02 or Section 2.9(c) of the Indenture;
(xix) the ABS Yield Spread, the Base Treasury Yield and the Minimum Spread Percent, each as of the related Determination Date;
(xx) the then-applicable Overcollateralization Base Percent Requirement, the then-applicable Overcollateralization Targeted Percent Requirement, and the then-applicable Required Credit Support Multiple;
(xxi) the Net Defaulted Loan losses incurred during the related Due Period and the Default Rate with respect to the related Payment Date;
(xxii) the Delinquency Rate (30 day) and the Delinquency Rate (60 day), each with respect to the related Payment Date; and
(xxiii) such other information as may be reasonably requested by the Indenture Trustee or Note Insurer.
(2) No later than seven days following a repurchase or substitution pursuant to Sections 3.05 or 4.02 or Section 2.9 of the Indenture, the Servicer shall notify each Rating Agency and the Note Insurer of the aggregate principal balances of the Home Loans repurchased or substituted and (if applicable) the relevant Substitution Adjustment. All reports prepared by the Servicer of the withdrawals from and deposits in the Collection Account will be based in whole or in part upon the information provided to the Indenture Trustee by the Servicer, and the Indenture Trustee may fully rely upon and shall have no liability with respect to such information provided by the Servicer.
(c) No later than three (3) Business Days of obtaining actual knowledge of before each Payment Date, 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 Servicer shall prepare and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of the 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 distribute to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any Note Insurer a monthly statement that includes the cumulative aggregate Principal Balance of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, in the form attached hereto as Exhibit I;
(ix) The compliance certificates, as and when required Home Loans that became Deleted Home Loans pursuant to Section 4.3;3.05(a) as a result of such Deleted Home Loans being Defective Home Loans from the Closing Date through the most current Due Period.
(xd) The Annual Capital Budget as and when required in Section 10.5;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no No later than fifty-five three (55) days following the commencement of the Fiscal Year to which such operating budget relates;
(xiv) Within five (53) 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the following a written request of Landlord:
(A) at by the sole cost and expense of Landlord (except with respect Arranger, the Servicer shall deliver a report to the Existing Fee Mortgage, which shall be at Arranger setting forth the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L ABS Yield Spread as of the date of such request.
(e) On each Advance Date and Note Principal Prepayment Date, the closing of such Fee Mortgage Securitization, except (x) Servicer shall deliver a report to the extent that any such representation is made as Arranger setting forth the weighted average Home Loan Interest Rate of a specific date, in which case such representation is accurate and complete in all material respects the Home Loans as of such specific dateAdvance Date or Note Principal Prepayment Date, after giving effect to the Advance or the Note Principal Prepayment, as applicable.
(f) Upon reasonable advance notice in writing, the Indenture Trustee will provide to each Noteholder which is a savings and loan association, bank or insurance company access to information and documentation regarding the Home Loans sufficient to permit such Noteholder to comply with applicable regulations of the FDIC or other regulatory authorities with respect to such Noteholder's investment in the Notes.
(g) The Indenture Trustee shall forward to each Noteholder during the term of this Agreement, such periodic, special, or other reports, including information tax returns or reports required with respect to the Notes, including Internal Revenue Service Forms 1099 and other similar reports that are required to be filed by the Indenture Trustee or its agent, whether or not provided for herein, as shall be necessary, reasonable, or appropriate with respect to the Noteholders, 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 Noteholders may reasonably require.
(h) Reports and computer tapes furnished by the Servicer and the Indenture Trustee pursuant to this Agreement shall be deemed confidential and of proprietary nature, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization shall not be copied or distributed except in connection with the Existing Fee Mortgage, Tenant purposes and requirements of this Agreement. No Person entitled to receive copies of such reports or tapes shall (I) be responsible use the information therein for the costs purpose of soliciting the customers of the Existing Fee Mortgagee in connection therewith to Seller or the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord Servicer or for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared other 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 Landlthis Agreement.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Firstplus Financial Group Inc)
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 (xxiv) 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 SPE Tenant: (a) Within ninety (90) days after Available Funds and each Class' Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) from (or to) any Gaming Authorities)Excess Interest paid as principal;
(vi) the Servicing Fee;
(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 number and Principal Balances of 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 reimbursements to the Servicer pursuant to Sections 3.03(ii) and (vi);
(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) [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; and
(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 Interest Rate Cap Agreement, and the amount of Net Rate Cap Carryover remaining for each such Class. 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 such Distribution Date and a statement setting forth the Facility), a written notice 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which 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; and
(xix) In connection with any Fee Mortgagee SecuritizationAgreement, Tenant shallsuch periodic, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except special or other reports or information, whether or not provided for herein, as shall be necessary, reasonable or appropriate with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information Certificateholder or otherwise with respect to the Propertypurposes 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;
(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, purpose except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information as set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Renaissance Mortgage Acceptance Corp)
Statements. Tenant shall furnish or cause to be furnished the following statements to Landlord:
(i) As to SPE Tenant: Within sixty-five (a) Within ninety (9065) days after the end of each Tenant Parent’s Fiscal Year Years (commencing with the Fiscal Year ending December 31, 2017)2013) or concurrently with the filing by Te▇▇▇▇’s Parent of its annual report on Form 10-K with the SEC, annual financial statements audited by an 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 SPE whichever is earlier: (x) Tenant, plus a calculation of EBITDAR for such Fiscal Year’s Parent’s Financial Statements; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 (2y) a certificate, executed by the chief financial officer or treasurer of CEOC the Tenant’s Parent (a) certifying that no Tenant Event of Default default has occurred under this Master Lease or, if such a Tenant Event of Default default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all thereto and (b) setting forth the calculation of which shall be provided within ninety (90) days after the end financial covenants set forth in Section 23.3 hereof in reasonable detail as of each such Fiscal Year (commencing with the Fiscal Year ending December 31, 20172014);
; and (Bz) 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 report with respect thereto, and (B) certifying that such to Tenant’s Parent’s 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); and
(C) such additional information and unaudited quarterly financial information concerning the Leased Property and from Tenant’s Parent’s accountants, 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to going concern and scope of audit of CEC Tenant’s Parent and its Subsidiaries (excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date of such audit or any projected financial performance or covenant default in any Material Indebtedness or this Master Lease in such twelve month period) and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC Tenant’s Parent 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 examination by CECTe▇▇▇▇’s Accountant Parent’s accountants in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety generally accepted auditing standards;
(90ii) Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of the Tenant’s Parent’s Fiscal Year (commencing with the Fiscal Year fiscal quarter ending December March 31, 2017);
(B2014) or concurrently with the filing by Te▇▇▇▇’s Parent of its quarterly unaudited financial statementsreport on Form 10-Q with the SEC, consisting of a statement of profit and losswhichever is earlier, a balance sheet, and statement copy of cash flows Tenant’s Parent’s Financial Statements for CECsuch period, together with a certificate, executed by the chief financial officer or treasurer of CEC Tenant’s Parent (i) certifying that no default has occurred or, if such a default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth the calculation of the financial covenants set forth in Section 23.3 hereof in reasonable detail as of such quarter, to the extent one complete Test Period has been completed which has commenced following the date of this Master Lease and (iii) and certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC Tenant’s Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(Ciii) Promptly following La▇▇▇▇▇▇’s request from time to time, (a) five-year forecasts of Tenant’s income statement and balance sheet covering such quarterly and annual periods as may be reasonably requested by Landlord, and in a format consistent with Tenant Parent’s quarterly and annual financial statements filed with the SEC, and such additional financial information and projections as may be reasonably requested by Landlord in connection with syndications, private placements, or public offerings of GLP’s or Landlord’s debt securities or loans or equity or hybrid securities and (b) 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, Tenant as Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP may require for any ongoing its on-going filings with or reports to (i) the SEC under both the Securities Act and the Securities Exchange ActAct of 1934, as amended, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP during the Term of this Master Lease, (ii) the Internal Revenue Service (including in respect of Landlord REITGLP’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo GLP or Landlord REIT its Subsidiaries subject to Section 23.1(c) below);
(iv) As soon as it is prepared and in no event later than sixty Within thirty-five (6035) days after the end of each Fiscal Yearcalendar month, a copy of Tenant’s income statement for such month and Tenant’s balance sheet as of Net Revenue end of such month (which may be subject to quarterly and year-end adjustments and the absence of footnotes; provided, however, that with respect to each calendar quarter, Tenant shall provide such financial reports for the Facility with respect to final month thereof as soon as is reasonably practicable following the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect closing of the periodic determination of books for such month and in sufficient time so that Landlord or its Affiliate is able to include the Variable Rent hereunderoperational results for the entire quarter in its current Form 10-Q or Form 10-K (or supplemental report filed in connection therewith);
(v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity 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 the 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 (or Manager) from (or to) any Gaming Authorities)Property;
(vi) Within ten As soon as it is prepared and in no event later than sixty (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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (2560) days after the end of each calendar month the following items as they pertain to SPE Tenant: (A) Fiscal Year, a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room and entertainment operating metrics for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses capital and operating income (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant Facility for each that Fiscal Year, which shall ; and
(vii) Tenant further agrees to provide the financial and operational reports to be delivered to Landlord no later than fifty-five (55under this Master Lease in such electronic format(s) 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 reasonably be reasonably possible), such further detailed information reasonably available required by Landlord from time to Tenant with respect time in order 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, facilitate La▇▇▇▇▇▇’s internal financial 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact reporting database and (ii) certifying as permit Landlord to the accuracy of the representations made by Tenant calculate any rent, fee or other payments due under Ground Leases. Te▇▇▇▇ ▇lso agrees that Landlord shall have audit rights with respect to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) information to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) required to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection confirm Tenant’s compliance with the Existing Fee MortgageMaster Lease terms (including, Tenant shall (I) be responsible for the costs without limitation, calculation of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 thereunderNet Revenues), 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 Landl.
Appears in 1 contract
Statements. Tenant Not later than 12:00 noon Chicago, Illinois time on the Business Day preceding each Determination Date, the Servicer shall furnish deliver to the Trustee and the Certificate Insurer a computer tape or cause written report containing the information set forth on Exhibit R as to each Mortgage Loan with respect to the related Due Period and such other information with respect to the Mortgage Loans in the aggregate as the Trustee shall reasonably require. Not later than 12:00 noon Chicago, Illinois time two Business Days preceding each Payment Date, the Trustee shall deliver to the Depositors, any Paying Agent, the Servicer, the Certificate Insurer, Moody's and S&P by telecopy, a statement (the "Remittance Report") containing the information set forth below with respect to the succeeding Payment Date, with a hard copy thereof to be furnished delivered on the following to Landlordimmediately succeeding Business Day:
(i) As the Available Payment Amount attributable to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year Mortgage Loan Group and containing statement of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each any portion of the first three Fiscal Quarters of each Fiscal Year (commencing with Available Payment Amount that has been deposited in the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting Collection Account but may not be withdrawn therefrom pursuant to an order of a statement United States bankruptcy court of profit and losscompetent jurisdiction imposing a stay pursuant to Section 362 of the United States Bankruptcy Code;
(▇▇) ▇▇▇ ▇▇▇▇▇ ▇-1 Principal Balance, a balance sheetthe Class A-2 Principal Balance, and statement of cash flowsthe Class A-3 Principal Balance, plus a calculation of EBITDAR for such Fiscal Quarter the Class A-4 Principal Balance, the Class A-5 Principal Balance, the Class A-6 Principal Balance, the Class A-7 Principal Balance, the Adjustable Rate Principal Balance and the applicable prior year Fiscal QuarterPool Principal Balance with respect to each Mortgage Loan Group, as reported in each casethe Remittance Report provided pursuant to subclause (xiii) below for the immediately preceding Payment Date, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 Original Class A-1 Principal Balance, the Original Class A-2 Principal Balance, the Original Class A-3 Principal Balance, the Original Class A-4 Principal Balance, the Original Class A-6 Principal Balance, the Original Class A-7 Principal Balance, the Original Class A-8 Principal Balance 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 Principal 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowMortgage Loan Group;
(iii) As with respect to CEC:
(A) annual financial statements audited by CEC’s Accountant in accordance with GAAP covering such Fiscal Year the Mortgage Pool and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respectsMortgage Loan Group, the financial position number and results Principal Balances of operations all Mortgage Loans which were the subject of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 Principal Prepayments during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowrelated Due Period;
(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 the Facility with respect to Mortgage Pool and each Mortgage Loan Group, the prior Lease Year (subject to amount of all Curtailments which were received 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 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 Tenantthe Mortgage Pool and each Mortgage Loan Group, the result aggregate 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 principal portion of all or any portion of Monthly Payments 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 the 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 (or Manager) from (or to) any Gaming Authorities)related Due Period;
(vi) Within ten (10) Business Days after with respect to the end of Mortgage Pool and 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 costMortgage Loan Group, the amount of depreciation interest received on the Mortgage Loans during the related Due Period;
(vii) with respect to the Mortgage Pool and any improvements theretoeach Mortgage Loan Group, substantially the aggregate amount of the Advances made and recovered with respect to such Payment Date;
(viii) with respect to the Mortgage Pool and each Mortgage Loan Group, the delinquency and foreclosure information set forth in the form attached hereto as Exhibit DH and the amount of Mortgage Loan Losses during the related Due Period;
(ix) the Class A-1 Principal Balance, the Class A-2 Principal Balance, the Class A-3 Principal Balance, the Class A-4 Principal Balance, the Class A-5 Principal Balance, the Class A-6 Principal Balance, the Class A-7 Principal Balance and the Adjustable Rate Principal Balance after giving effect to the distribution to be made on such Payment Date;
(x) with respect to the Mortgage Pool and each Mortgage Loan Group, the weighted average maturity and the weighted average Mortgage Interest Rate of the Mortgage Loans in each Mortgage Loan Group as of the last day of the related Due Period;
(xi) the Servicing Fees paid and Servicing Fees accrued during the related Due Period;
(xii) the amount of all payments or reimbursements to the Servicer pursuant to Section 5.04 (ii), (iv), (v), (vi) and (vii) paid or to be paid since the prior Payment Date (or in the case of the first Payment Date, since the Closing Date);
(xiii) the Pool Principal Balance and aggregate Principal Balance for each Mortgage Loan Group as of the last day of the related Due Period;
(xiv) such other information as the Certificate Insurer, each Account Party and the Certificateholders may reasonably require;
(xv) the amounts which are reimbursable to the Servicer, the Representative or the Depositors, as appropriate, pursuant to Section 6.05;
(xvi) with respect to the Mortgage Pool and each Mortgage Loan Group, the number of Mortgage Loans outstanding at the beginning and at the end of the related Due Period;
(xvii) the aggregate interest accrued on the Mortgage Loans at their respective Mortgage Interest Rates for the related Due Period;
(xviii) the Principal Balance of Mortgage Loans in the Fixed Rate Group with Mortgage Interest Rates less than 8.17% per annum and less than 8.27% per annum;
(xix) the Subordinated Amount, the amount on deposit in the Spread Account, the Cumulative Excess Spread Receipts, in each case after giving effect to any payments or withdrawals on such Payment Date, and such additional customary with respect to the Mortgage Pool and reasonable financial information each Mortgage Loan Group, the Excess Spread 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 Payment Date;
(viixx) Within three (3) Business Days of obtaining actual knowledge the aggregate Mortgage Loan Losses since the Cut-off Date as of the occurrence of a Tenant Event of Default (or end of the occurrence of any facts or circumstances whichrelated Due Period; and
(xxi) the LIBOR Interest Carryover with respect to such Payment Date. The Trustee shall forward such report to the Certificateholders on the Payment Date, by telecopy, with a hard copy to follow (in the giving case of the Depository) or by first class mail. The Depositors and the Trustee may fully rely upon and shall have no liability with respect to information 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 and the Trustee may rely upon the telecopy. In the case of information furnished pursuant to subclauses (ii), (iii), (iv), (v) and (ix) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each of the Class A Certificates for each $1,000 original dollar amount as of the Cut-off Date.
(a) Upon reasonable advance notice in writing, the Servicer will provide to the Trustee access to information and documentation regarding the Mortgage Loans sufficient to permit any Holder which is a savings and loan association, bank or insurance company to comply with applicable regulations of the FDIC or other regulatory authorities with respect to investment in the Certificates, as applicable.
(b) The Servicer shall furnish to the Trustee and to the Certificate Insurer, during the term of this Agreement, such periodic, special, or other reports or information not specifically provided for herein, as may be necessary, reasonable, or appropriate with respect to the Trustee or the passage Certificate Insurer, as the case may be, or otherwise with respect to the purposes of time would ripen into a Tenant Event of Default this Agreement, all such reports or information to be provided by and in accordance with such applicable instructions and directions as the Trustee or the Certificate Insurer may reasonably require; provided, that (individually or collectively would the Servicer shall be reasonably expected entitled to result in a material adverse effect on Tenant or in respect of be reimbursed by the Facility)requesting party, a written notice to Landlord regarding for the same, which notice shall include a detailed description of the Tenant Event of Default (or fees and actual expenses associated with providing such facts or circumstances) and the actions Tenant has taken or shall takereports, if any, to remedy such Tenant Event reports are not generally produced in the ordinary course of Default (or such facts or circumstances);its business.
(viiic) Such additional customary Reports and reasonable financial computer tapes furnished by the Servicer pursuant to this Agreement shall be deemed confidential and of proprietary nature, and shall not be copied or distributed except in connection with the purposes and requirements of this Agreement; provided that the Certificate Insurer may copy or distribute such information related (A) pursuant to a subpoena or order issued by a court of competent jurisdiction or by a judicial or administrative or legislative body or committee, (B) as may be required in any report, statement or testimony submitted to any Federal, state, municipal or other regulatory body having jurisdiction over the Certificate Insurer, (C) in order to comply with any law, ruling, order or regulation applicable to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectivelyCertificate Insurer, or the Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case (D) as may be required by any Fee Mortgagee rating agency or reinsurer. No Person entitled to receive copies of such reports or tapes shall use the information therein for the purpose of soliciting the customers of the Originators or for any other purpose except as an Additional Fee Mortgagee Requirement hereunder set forth in this Agreement.
(d) The Trustee shall promptly send to the Certificate Insurer and to each Certificateholder) in writing:
(i) notice of any reduction in the Specified Spread Account Requirement;
(ii) notice of any reduction of the percentages set forth in the definition of "Monthly Excess Spread Amount";
(iii) notice of the appointment of any Subservicer;
(iv) notice of any transfer of any Account to a different depository institution;
(v) notice of any reduction in the rating of any Letter of Credit Bank below the minimum ratings described in Section 6.11(b);
(vi) a copy of each Officer's Certificate delivered pursuant to Section 7.04 and any notice received from the Servicer of a change in the fiscal year of the Servicer;
(vii) a copy of each letter delivered pursuant to Section 7.05; and
(viii) notice of the receipt by the Trustee of any information regarding the Servicer's servicing activities pursuant to the last paragraph of Section 10.01(c); provided, that in each case the Trustee shall only be required to send such notices and other items to such Persons to the extent required that the Trustee has itself received the related information. The Depositors, the Servicer and the Trustee on behalf of Certificateholders (the "Trust Parties") hereby authorize the Certificate Insurer to include the information contained in reports provided to the Certificate Insurer hereunder (the "Information") on The Bloomberg, an on-line computer based information network maintained by Section 31.3Bloomberg L.P. ("Bloomberg"), or in other electronic or print information services. Without limitation The Trust Parties agree not to commence any actions or proceedings, or otherwise assert any claims, against the Certificate Insurer or its affiliates or any of the foregoingCertificate Insurer's or its affiliates' respective agents, representatives, directors, officers or employees (collectively, the "Certificate Insurer Parties"), arising out of, or related to or in connection with the Existing Fee Mortgagedissemination and/or use of any Information by the Certificate Insurer, Tenant will furnishincluding, but not limited to, claims based on allegations of inaccurate, incomplete or cause erroneous transfer of information by the Certificate Insurer to be furnished, to Landlord on Bloomberg or before twenty-five otherwise (25) days after the end of each calendar month the following items as they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, than 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(xii) Together connection with the monthly reporting required pursuant Certificate Insurer's negligence or willful misconduct). The Trust Parties waive their rights to assert any such claims against the preceding clause Certificate Insurer Parties and fully and finally release the Certificate Insurer Parties from any and all such claims, demands, obligations, actions and liabilities (xi), an updated rent roll and a summary of all leasing activity then taking place at the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later other 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; and
(xix) In connection with the Certificate Insurer's negligence or willful misconduct). The Certificate Insurer makes no representations or warranties, expressed or implied, of any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except kind whatsoever with respect to the Existing Fee Mortgageaccuracy, which adequacy, timeliness, completeness, merchantability or fitness for any particular purpose of any Information in any form or manner. The Certificate Insurer reserves the right at any time to withdraw or suspend the dissemination of the Information by the Certificate Insurer. The authorizations, covenants and obligations of the Trust Parties under this section shall be at irrevocable and shall survive the sole cost and expense of Tenant as provided in the final sentence termination of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlAgreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Eqcc Asset Backed Corp)
Statements. Tenant shall furnish If the amount of the commission as so recalculated is greater or cause less than the amount of commission paid on such Commission Due Date, then the Bank will refund to be furnished the following to Landlord:
(i) As to SPE Tenant: (a) Within ninety (90) days after Company the end excess of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an Accountant amount of the commission paid on such Commission Due Date over the commission determined in accordance with GAAP covering such Fiscal Year and containing statement of profit and lossrecalculation, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after or the end of each Company will pay to the Bank the excess of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis commission determined in accordance with GAAP (subjectsuch recalculation over the commission paid on such Commission Due Date, in the case such refund or such payment 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 additional commission to be taken with respect thereto, all of which shall be provided due within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) from (or to) any Gaming Authorities);
(vi) Within ten (10) Business Days after days following delivery of such annual audited Financial Statements. A transaction fee shall be payable by the end Company to the Bank for each Drawing under the 1993 Direct-Pay Letter of each calendar month, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing such assets Credit in summary form, their location, historical cost, the amount of depreciation and one-eighth of one percent (1/8%) of the amount of the Drawing or Sixty-Five Dollars ($65.00), whichever is greater. Transaction fees on account of Drawings shall be due on the day when the Drawing is paid by the Bank. On the Banking Day preceding each Commission Due Date, the Company shall deposit into the Designated Account such amount as may be necessary to cause the balance of the Designated Account to be not less than the amount of commission due on such Commission Due Date, plus any improvements thereto, substantially other amounts required to be on deposit in the form attached hereto as Exhibit DDesignated Account on such date pursuant to other provisions of this Agreement. The Bank shall be entitled, without further authorization from the Company, to charge the amount of the commission due on each Commission Due Date to the Designated Account, and if the balance of the Designated Account is insufficient to satisfy the entire amount then due to the Bank on account of the commission, the Bank may, without further authorization of the Company, charge such additional customary and reasonable financial information with respect deficiency 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 other deposit account of the Company maintained with the fixed asset methodology for propco-opco separation used as Bank. All commissions and fees payable under the terms of the Commencement Date;
(viithis Section 3.01(a)(3) 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited payable with interest at the Prime Rate plus two percent (2%) per annum from the date due until paid. If the 1993 Direct-Pay Letter of Credit is transferred to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the Facility or the business of Tenant conducted thereat required a new beneficiary pursuant to the Fee Mortgage Documentsterms thereof, within then the applicable timeframes required thereunder), in each case as may be required by any Fee Mortgagee as an Additional Fee Mortgagee Requirement hereunder Company covenants and agrees to pay to the extent required Bank promptly upon its demand a transfer fee in the amount then customarily assessed by Section 31.3. Without limitation the Bank for transfers of letters of credit of the foregoing, in connection with same type and amount as the Existing Fee Mortgage, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty1993 Direct-five (25) days after the end Pay Letter of each calendar month the following items as they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlCredit.
Appears in 1 contract
Sources: Credit Agreement (Dmi Furniture Inc)
Statements. Tenant shall furnish or cause to be furnished the following to Landlord:
(i) As to SPE Tenant: (a) Within ninety For each month during the Term, JCP&L shall prepare and present to NJEA, on or before the twentieth (9020th) days after day of the subsequent month, a statement (in $/kWh) for Contract Energy and Capacity delivered to JCP&L during such month in accordance with Article 4 hereof. Such statement shall indicate (1) the total MWhs of Contract Energy and Capacity delivered or supplied during the month, (2) the calculation of the Energy Price for such Contract Energy and any Delivery Point Adjustment applicable in respect of such month pursuant to Section 3.8(f) hereof and (3) any applicable credits or amounts payable to either Party pursuant to Sections 3.6, 3.7, 4.1, and 5.2 hereof or any other provision of this Agreement. All invoices and statements for amounts payable by one Party to the other Party under this Agreement shall be in $/kWh.
(b) On or before the fifteenth (15th) day following the end of each Fiscal Year (commencing with month during the Fiscal Year ending December 31Term, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each NJEA shall provide written notice to JCP&L of the first three Fiscal Quarters amount of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, Contract Energy delivered to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 JCP&L hereunder during the Term of this Lease, preceding month that was delivered from sources other than the Facility. On or before the fifteenth (ii15th) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) from (or to) any Gaming Authorities);
(vi) Within ten (10) Business Days after day following the end of each calendar monthyear during the Term (or partial calendar year, a schedule containing any additions as applicable), NJEA shall provide written notice to or retirements JCP&L 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 Contract Energy delivered to JCP&L hereunder 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 of a Tenant Event of Default preceding calendar year (or of the occurrence of any facts or circumstances whichpartial calendar year, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and as applicable) that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of was delivered from sources other than the Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default . If for any calendar year (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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (andincluding, without limitation, all information concerning Tenantthe first and last partial calendar years of the Term) the product of the JCP&L Discount multiplied by the number of MWhs of Contract Energy delivered to JCP&L hereunder during such calendar year (or partial calendar year, CEOC, CEC and any as applicable) by or on behalf of their Affiliates, respectively, or NJEA from sources other than the Facility is greater than the Minimum Energy Price Discount for such calendar year, then such difference shall be deducted from the amount payable by JCP&L hereunder for the next succeeding month or in 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 foregoinglast year of the Term, in connection with the Existing Fee Mortgage, 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 SPE Tenant: (A) a rent roll Term invoice for Contract Energy delivered for the subject month, an occupancy report for last month of the subject month, including an average daily rate and revenue per available room and entertainment operating metrics for the subject month; Term (B) monthly and year-to-date operating statements prepared for each which month could be a full or partial calendar month, noting gross revenue, net revenue, operating expenses and operating income (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landl.
Appears in 1 contract
Sources: Power Purchase Agreement (Esi Tractebel Acquisition Corp)
Statements. Tenant (a) Concurrently with each payment to Noteholders, the Securities Administrator shall furnish or cause make available to each Noteholder, the Seller, the Master Servicer, the Indenture Trustee, the Depositor and the Rating Agencies, a statement based, as applicable, on loan-level information provided to it by the Master Servicer and the Servicer (the “Payment Date Statement”) as to the payments to be furnished made or made, as applicable, on such Payment Date. The Payment Date Statement shall include the following to Landlordfollowing:
(i1) As to SPE Tenant: the applicable Accrual Periods and general Payment Dates;
(a2) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheet, and statement of total cash flows received and the general sources thereof for SPE TenantLoan Group I and Loan Group II;
(3) the amount, plus a calculation if any, of EBITDAR fees or expenses accrued and paid, with an identification of the payee and the general purpose of such fees;
(4) the amount of the related payment to holders of the Notes (by Class) allocable to principal, separately identifying (A) the aggregate amount of any Principal Prepayments included therein and (B) the aggregate of all Monthly Payments of principal included therein;
(5) the amount of such distribution to holders of the Notes (by Class) allocable to interest;
(6) 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;
(7) the number and Scheduled Principal Balance of all the Group I Mortgage Loans and Group II Mortgage Loans for the following Payment Date;
(8) the Note Interest Rate for each class of Notes for such Fiscal Year; and Payment Date;
(b9) within sixty (60) days after the end aggregate amount of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subject, Advances included in the case payments on the Payment Date (including the general purpose of quarterly financial statements, to normal year-end audit adjustments and the absence of footnotessuch Advances);
(ii10) As to CEOC:
the number and aggregate Scheduled Principal Balance of any Group I Mortgage Loans and Group II Mortgage Loans (A) annual financial statements audited by CEOC’s Accountant that were delinquent (exclusive of Mortgage Loans 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 foreclosure) using the “OTS” method (1) a report thereon by such Accountant which report shall be unqualified as to scope of audit of CEOC one scheduled payment, (2) two scheduled payments 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 three scheduled payments and (B) that as to which foreclosure proceedings have been commenced, and loss information for 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)period;
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C11) with respect to any Mortgage Loan that was liquidated during the Existing Fee Mortgagepreceding calendar month, deliver a certification to Landlord (i) certifying that the information set forth in loan number and Scheduled Principal Balance of, and Realized Loss on, such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L Mortgage Loan as of the date end of the closing related Prepayment Period;
(12) the total number and Principal Balance of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made REO Properties included in Loan Group I and Loan Group II as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs end of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlrelated Prepayment Period;
Appears in 1 contract
Sources: Sale and Servicing Agreement (PHH Mortgage Trust, Series 2008-Cim1)
Statements. Tenant Not later than 12:00 noon Chicago, Illinois time on the Business Day preceding each Determination Date, the Servicer shall furnish deliver to the Trustee and the Certificate Insurer a computer tape or cause written report containing the information set forth on Exhibit R as to each Mortgage Loan with respect to the related Due Period and such other information with respect to the Mortgage Loans in the aggregate as the Trustee shall reasonably require. Not later than 12:00 noon Chicago, Illinois time two Business Days preceding each Payment Date, the Trustee shall deliver to the Depositors, any Paying Agent, the Servicer, the Certificate Insurer, Moody's and S&P by telecopy, a statement (the "Remittance Report") containing the information set forth below with respect to the succeeding Payment Date, with a hard copy thereof to be furnished delivered on the following to Landlordimmediately succeeding Business Day:
(i) As the Available Payment Amount attributable to SPE Tenant: (a) Within ninety (90) days after each Mortgage Loan Group and any portion of such Available Payment Amount that has been deposited in the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by Collection Account but may not be withdrawn therefrom pursuant to an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting order of a statement United States bankruptcy court of profit and losscompetent jurisdiction imposing a stay pursuant to ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code; 118
(ii) the Class A-1 Principal Balance, a balance sheetthe Class A-2 Principal Balance, and statement of cash flowsthe Class A-3 Principal Balance, plus a calculation of EBITDAR for such Fiscal Quarter the Class A-4 Principal Balance, the Class A-5 Principal Balance, the Class A-6 Principal Balance and the applicable prior year Fiscal QuarterPool Principal Balance attributable to each Mortgage Loan Group, as reported in each casethe Remittance Report provided pursuant to subclause (xiii) below for the immediately preceding Payment Date, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 Original Class A-1 Principal Balance, the Original Class A-2 Principal Balance, the Original Class A-3 Principal Balance, the Original Class A-4 Principal Balance, the Original Class A-5 Principal Balance, the Original Class A-6 Principal Balance 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 Principal 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowMortgage Loan Group;
(iii) As with respect to CEC:
(A) annual financial statements audited by CEC’s Accountant in accordance with GAAP covering such Fiscal Year the Mortgage Pool and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respectsMortgage Loan Group, the financial position number and results Principal Balances of operations all Mortgage Loans which were the subject of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 Principal Prepayments during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowrelated Due Period;
(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 the Facility with respect to Mortgage Pool and each Mortgage Loan Group, the prior Lease Year (subject to amount of all Curtailments which were received 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 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 Tenantthe Mortgage Pool and each Mortgage Loan Group, the result aggregate 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 principal portion of all or any portion of Monthly Payments 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 the 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 (or Manager) from (or to) any Gaming Authorities)related Due Period;
(vi) Within ten (10) Business Days after with respect to the end of Mortgage Pool and 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 costMortgage Loan Group, the amount of depreciation interest received on the Mortgage Loans during the related Due Period;
(vii) with respect to the Mortgage Pool and any improvements theretoeach Mortgage Loan Group, substantially the aggregate amount of the Advances made and recovered with respect to such Payment Date;
(viii) with respect to the Mortgage Pool and each Mortgage Loan Group, the delinquency and foreclosure information set forth in the form attached hereto as Exhibit DH and the amount of Mortgage Loan Losses during the related Due Period; 119
(ix) the Class A-1 Principal Balance, the Class A-2 Principal Balance, the Class A-3 Principal Balance, the Class A-4 Principal Balance, the Class A-5 Principal Balance and the Class A-6 Principal Balance, after giving effect to the distribution to be made on such Payment Date;
(x) with respect to the Mortgage Pool and each Mortgage Loan Group, the weighted average maturity and the weighted average Mortgage Interest Rate of the Mortgage Loans as of the last day of the related Due Period;
(xi) the Servicing Fees paid and Servicing Fees accrued during the related Due Period;
(xii) the amount of all payments or reimbursements to the Servicer pursuant to Section 5.04 (ii), (iv), (v), (vi) and (vii) paid or to be paid since the prior Payment Date (or in the case of the first Payment Date, since the Closing Date);
(xiii) the Pool Principal Balance and aggregate Principal Balance for each Mortgage Loan Group as of the last day of the related Due Period;
(xiv) such other information as the Certificate Insurer, each Account Party and the Certificateholders may reasonably require;
(xv) the amounts which are reimbursable to the Servicer, the Representative or the Depositors, as appropriate, pursuant to Section 6.05;
(xvi) with respect to the Mortgage Pool and each Mortgage Loan Group, the number of Mortgage Loans outstanding at the beginning and at the end of the related Due Period;
(xvii) the aggregate interest accrued on the Mortgage Loans at their respective Mortgage Interest Rates for the related Due Period;
(xviii) the Subordinated Amount, the amount on deposit in the Spread Account, the Cumulative Excess Spread Receipts, 120 in each case after giving effect to any payments or withdrawals on such Payment Date, and such additional customary and reasonable financial information the Excess Spread 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 Payment Date;
(viixix) Within three The Principal Balance of Mortgage Loans in the Fixed Rate Group with Mortgage Interest Rates less than 8.45% per annum and 8.55% per annum; and
(3xx) Business Days of obtaining actual knowledge The aggregate Mortgage Loan Losses since the Cut-off Date as of the occurrence of a Tenant Event of Default (or end of the occurrence of any facts or circumstances whichrelated Due Period. The Trustee shall forward such report to the Certificateholders on the Payment Date, by telecopy, with a hard copy to follow (in the giving case of the Depository) or by first class mail. The Depositors and the Trustee may fully rely upon and shall have no liability with respect to information 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 and the Trustee may rely upon the telecopy. In the case of information furnished pursuant to subclauses (ii), (iii), (iv), (v) and (ix) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each of the Class A Certificates for each $1,000 original dollar amount as of the Cut-off Date.
(a) Upon reasonable advance notice in writing, the Servicer will provide to the Trustee access to information and documentation regarding the Mortgage Loans sufficient to permit any Holder which is a savings and loan association, bank or insurance company to comply with applicable regulations of the FDIC or other regulatory authorities with respect to investment in the Certificates, as applicable.
(b) The Servicer shall furnish to the Trustee and to the Certificate Insurer, during the term of this Agreement, such periodic, special, or other reports or information not specifically provided for herein, as may be necessary, reasonable, or appropriate with respect to the Trustee or the passage Certificate Insurer, as the case may be, or otherwise with respect to the purposes of time would ripen into a Tenant Event of Default this Agreement, all such reports or 121 information to be provided by and in accordance with such applicable instructions and directions as the Trustee or the Certificate Insurer may reasonably require; provided, that (individually or collectively would the Servicer shall be reasonably expected entitled to result in a material adverse effect on Tenant or in respect of be reimbursed by the Facility)requesting party, a written notice to Landlord regarding for the same, which notice shall include a detailed description of the Tenant Event of Default (or fees and actual expenses associated with providing such facts or circumstances) and the actions Tenant has taken or shall takereports, if any, to remedy such Tenant Event reports are not generally produced in the ordinary course of Default (or such facts or circumstances);its business.
(viiic) Such additional customary Reports and reasonable financial computer tapes furnished by the Servicer pursuant to this Agreement shall be deemed confidential and of proprietary nature, and shall not be copied or distributed except in connection with the purposes and requirements of this Agreement; provided that the Certificate Insurer may copy or distribute such information related (A) pursuant to a subpoena or order issued by a court of competent jurisdiction or by a judicial or administrative or legislative body or committee, (B) as may be required in any report, statement or testimony submitted to any Federal, state, municipal or other regulatory body having jurisdiction over the Certificate Insurer, (C) in order to comply with any law, ruling, order or regulation applicable to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectivelyCertificate Insurer, or the Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case (D) as may be required by any Fee Mortgagee rating agency or reinsurer. No Person entitled to receive copies of such reports or tapes shall use the information therein for the purpose of soliciting the customers of the Originators or for any other purpose except as an Additional Fee Mortgagee Requirement hereunder set forth in this Agreement.
(d) The Trustee shall promptly send to the Certificate Insurer and to each Certificateholder) in writing:
(i) notice of any reduction in the Specified Spread Account Requirement;
(ii) notice of any reduction of the percentages set forth in the definition of "Monthly Excess Spread Amount";
(iii) notice of the appointment of any Subservicer;
(iv) notice of any transfer of any Account to a different depository institution;
(v) notice of any reduction in the rating of any Letter of Credit Bank below the minimum ratings described in Section 6.11(b);
(vi) a copy of each Officer's Certificate delivered pursuant to Section 7.04 and any notice received from the Servicer of a change in the fiscal year of the Servicer;
(vii) a copy of each letter delivered pursuant to Section 7.05; and
(viii) notice of the receipt by the Trustee of any information regarding the Servicer's servicing activities pursuant to the last paragraph of Section 10.01(c); provided, that in each case the Trustee shall only be required to send such notices and other items to such Persons to the extent required that the Trustee has itself received the related information. The Depositors, the Servicer and the Trustee on behalf of Certificateholders (the "Trust Parties") hereby authorize the Certificate Insurer to include the information contained in reports provided to the Certificate Insurer hereunder (the "Information") on The Bloomberg, an on-line computer based information network maintained by Section 31.3Bloomberg L.P. ("Bloomberg"), or in other electronic or print information services. Without limitation The Trust Parties agree not to commence any actions or proceedings, or otherwise assert any claims, against the Certificate Insurer or its affiliates or any of the foregoingCertificate Insurer's or its affiliates' respective agents, representatives, directors, officers or employees (collectively, the "Certificate Insurer Parties"), arising out of, or related to or in connection with the Existing Fee Mortgagedissemination and/or use of any Information by the Certificate Insurer, Tenant will furnishincluding, but not limited to, claims based on allegations of inaccurate, incomplete or cause erroneous transfer of information by the Certificate Insurer to be furnished, to Landlord on Bloomberg or before twenty-five otherwise (25) days after the end of each calendar month the following items as they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, than 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(xii) Together connection with the monthly reporting required pursuant Certificate Insurer's negligence or willful misconduct). The Trust Parties waive their rights to assert any such claims against the preceding clause Certificate Insurer Parties and fully and finally release the Certificate Insurer Parties from any and all such claims, demands, obligations, actions and liabilities (xi), an updated rent roll and a summary of all leasing activity then taking place at the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later other 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; and
(xix) In connection with the Certificate Insurer's negligence or willful misconduct). The Certificate Insurer makes no representations or warranties, expressed or implied, of any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except kind whatsoever with respect to the Existing Fee Mortgageaccuracy, which adequacy, timeliness, completeness, merchantability or fitness for any particular purpose of any Information in any form or manner. The Certificate Insurer reserves the right at any time to withdraw or suspend the dissemination of the Information by the Certificate Insurer. The authorizations, covenants and obligations of the Trust Parties under this section shall be at irrevocable and shall survive the sole cost and expense of Tenant as provided in the final sentence termination of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlAgreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Eqcc Asset Backed Corp)
Statements. Tenant shall furnish or cause to be furnished the following statements to Landlord:
(i) As to SPE Tenant: Within ninety-five (a) Within ninety (9095) days after the end of each Tenants’ Fiscal Year (commencing Years or concurrently with the Fiscal Year ending December 31filing by Guarantor of its annual report on Form 10K with the SEC, 2017), annual financial statements audited whichever is later: (i) Guarantor’s Financial Statements; (ii) Financials for each of the Facilities for the fiscal year last completed in each case certified by an Accountant in accordance with GAAP covering such Fiscal Year and containing statement Officer of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 (1iii) a report thereon by such Accountant with respect to Guarantor’s Financial Statements from Guarantor’s accountants, which report shall be unqualified as to going concern and scope of audit of CEOC Guarantor 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC Guarantor and its Subsidiaries 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 examination by CECGuarantor’s Accountant accountants 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)generally accepted auditing standards;
(Bii) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC and its Subsidiaries on a consolidated basis in accordance with GAAP Within fifty (subject to normal year-end audit adjustments and the absence of footnotes) which shall be provided within sixty (6050) days after the end of each of the first three Fiscal Quarters of each Tenant’s Fiscal Year (commencing quarters or concurrently with the Fiscal Quarter ending September 30filing by Guarantor of its quarterly report on Form 10Q with the SEC, 2017)whichever is later, a copy of Guarantor’s Financials for such period;
(Ciii) Upon Landlord’s request from time to time, 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, Tenant as Landlord, PropCo 1, PropCo or Landlord REIT may require for any ongoing its on-going filings with or reports to (i) the SEC under both the Securities Act and the Securities Exchange ActAct of 1934, as amended, including, but not limited to 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 Master Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowthe conditions that neither Tenant nor Guarantor shall be required to disclose information that is material non-public information or is subject to the quality assurance immunity or is subject to attorney-client privilege or the attorney work product doctrine; provided, however, in the event that Guarantor is no longer a registrant under the Securities Exchange Act of 1934, as amended, Tenant and/or Guarantor shall continue to provide to Landlord the same information that Guarantor would have included in filings on Form 10-Q and Form 10-K if it were such a registrant;
(iv) As soon as it is prepared and in no event later than sixty Within forty (6040) days after the end of each Fiscal Yearmonth, a statement financial report for each of Net Revenue the Facilities for such month, including detailed statements of income and expense and detailed operational statistics regarding occupancy rates, patient mix and patient rates by type for each Facility; provided, however, that with respect to each calendar quarter, Tenant shall provide such financial reports for the Facility with respect to final month thereof as soon as is reasonably practicable following the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect closing of the periodic determination of books for such month and in sufficient time so that Landlord or its Affiliate is able to include the Variable Rent hereunderoperational results for the entire quarter in its current Form 10-Q or Form 10-K (or supplemental report filed in connection therewith);
(v) Within fifteen (15) Business Days after Tenant’s receipt of a written request from Landlord, copies of the most recent surveys performed by the appropriate governmental agencies for licensing or certification purposes, and any plan of correction submitted by Tenant to such agencies along with evidence as to whether it has yet been approved, or is still under review, by the State;
(vi) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity entity, (any of which is called a “Proceeding”), known to Tenant, the result of which Proceeding would reasonably be expected to be to (a) 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 whichProperty, or (b) suspend, terminate, adversely modify, or fail to renew or fully continue in effect any case under this clause (y) (individually cost reimbursement or collectively)cost sharing program by any state or federal governmental agency, including but not limited to Medicaid/Medi-Cal or Medicare or any successor or substitute therefor, if the effect thereof is or reasonably would reasonably be reasonably expected anticipated to cause a material be materially adverse effect on to Tenant or in respect of the 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 (or Manager) 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 or (iii) seek return of or reimbursement for any funds previously advanced or paid pursuant to any such assets program, if the effect thereof is or reasonably would be anticipated to be materially adverse to Tenant or the Leased Property, or (iv) impose any bed hold, limitation on patient admission or similar restriction on the Leased Property for a period in summary formexcess of thirty (30) days, their location, historical cost, the amount of depreciation and or (iv) prosecute any improvements thereto, substantially in the form attached hereto as Exhibit D, and such additional customary and reasonable financial information party with respect to such fixed assets constituting the operation of any activity on the Leased Property as is reasonably requested by Landlord, it being understood that Tenant may classify or enjoin any asset additions party or seek any civil penalty in accordance with the fixed asset methodology for propco-opco separation used as excess of the Commencement DateTwo Hundred Fifty Thousand Dollars ($250,000) in respect thereof;
(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 As soon as it is prepared in a material adverse effect on Tenant or in respect of the Facility)Lease Year, 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) capital and operating budget for each Facility for that and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);following Lease Year; and
(viii) Such additional customary and reasonable financial information related Within fifteen (15) Business Days after Tenant’s receipt of a written request from Landlord, copies of Medicaid/Medi-Cal rate letters. Tenant further agrees to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent provide the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, in the form attached hereto as Exhibit I;
(ix) The compliance certificates, as and when required pursuant operational reports to Section 4.3;
(x) The Annual Capital Budget as and when required in Section 10.5;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later than fifty-five (55under this Master Lease in such electronic format(s) 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 reasonably be reasonably possible), such further detailed information reasonably available required by Landlord from time 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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 time in order to satisfy facilitate the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing integration of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord information within twenty (20) days of Landlord’s written request therefor. 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 (internal financial 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 Landlreporting database.
Appears in 1 contract
Sources: Master Lease (SHG Services, Inc.)
Statements. Tenant (a) Not later than 11:00 a.m., Illinois time, on the fifth Business Day prior to each Distribution Date, the Servicer shall furnish or cause deliver to the Securities Administrator by electronic means a computer file containing the information called for by 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 Securities Administrator shall deliver to the Servicer, the Trustee, 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 two Business Days prior to each Distribution Date the Securities Administrator shall deliver to the Trustee a statement (the "Remittance Report") containing the information set forth below with respect to such Distribution Date, which information shall be based upon the information furnished by the following to LandlordServicer upon which the Securities Administrator and the Trustee shall conclusively rely without independent verification or calculation thereof:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of Available Funds for each Fiscal Year (commencing with Certificate Group and each Class' Certificate Rate for the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 Required Overcollateralization Amount as of the Facility)close of business on the Distribution Date, after giving effect to distributions of principal on such Distribution Date;
(x) whether a written notice to Landlord regarding Cumulative Loss Event or a Delinquency Event has occurred and is continuing and the samecalculation thereof;
(xi) the number and Principal Balances of 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, which notice shall include a detailed description the amount of the Tenant Event 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 Default 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 Groupoutstanding 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 the Class A-1F and Class A-2F 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 report to the FacilityServicer, Tenantthe Seller, CEOCthe Certificate Insurer, CEC the Certificateholders, the Rating Agencies, Bloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) and their Affiliates which shall be limited to balance sheets and income statements Intex Solutions (andat ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, without limitation▇▇▇▇▇▇▇, all information concerning Tenant▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, CEOC, CEC and any of their Affiliates, respectively, or Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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 Securities Administrator and the Trustee may fully rely upon and shall have no liability with respect to information described on Exhibit M provided by the Servicer. The Servicer shall not be so excluded even if such information qualifies within calculate all items in clauses (i) - (xxvii) above. 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), (ii) or (iii) of this parenthetical), (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 extent reasonably requested parties to this Agreement via the Securities Administrator's internet website and its fax-on-demand service. The Securities Administrator's fax-on-demand service may be accessed by such Fee Mortgagee calling (▇▇▇) ▇▇▇-▇▇▇▇. The Securities Administrator'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 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 satisfy make such distribution more convenient and/or more accessible to the market standards above parties and the Securities Administrator shall provide timely and adequate notification to which all above parties regarding any such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies;changes.
(Bb) reviewWithin a reasonable period of time after the end of each calendar year, re-review andthe Trustee shall furnish to each Person who at any time during the calendar year was a Holder of a Regular Certificate, 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 if requested in writing 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, except with respect to the Existing Fee Mortgagesuch Person, 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 as is reasonably necessary to bona fide confidentiality restrictions; and
(C) with respect provide to the Existing Fee Mortgage, deliver such Person a certification to Landlord (i) certifying that statement containing the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause subclauses (Biii) does not at the time furnished contain any untrue statement of any material fact and (iiiv) certifying as to the accuracy above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the representations made by Tenant Trustee shall be deemed to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any such representation is made 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 a specific date, the reports forwarded to the Holders of the Regular Certificates in which case such representation is accurate and complete in all material respects as respect of such specific dateDistribution Date and a statement setting forth the amounts actually distributed to the Class R Certificateholders on 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, and (y) 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 Securities Administrator or the Trustee or and furnished to Certificateholders by the Trustee pursuant to any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs requirements of the Existing Fee Mortgagee Code as from time to time in connection therewith force.
(e) The Servicer, the Securities Administrator and the Trustee shall furnish to 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, the Securities Administrator 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 copied or distributed except to the extent Landlord is required under by law or to the Existing Fee Mortgage Documents Rating Agencies. No Person entitled to pay receive copies of such costs, and (II) reimburse Landlord reports or diskettes or files or lists of Certificateholders shall use the information therein for the purpose of soliciting the customers of the Seller or for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared other 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Delta Funding Home Equity Loan Tr 99-3 Home Eq as Bk Se 99-3)
Statements. Tenant Not later than 12:00 noon Chicago, Illinois time on the Business Day preceding each Determination Date, the Servicer shall furnish deliver to the Trustee and the Certificate Insurer a computer tape or cause written report containing the information set forth on Exhibit R as to each Mortgage Loan with respect to the related Due Period and such other information with respect to the Mortgage Loans in the aggregate as the Trustee shall reasonably require. Not later than 12:00 noon Chicago, Illinois time two Business Days preceding each Payment Date, the Trustee shall deliver to the Depositors, any Paying Agent, the Servicer, the Certificate Insurer, ▇▇▇▇▇'▇ and S&P by telecopy, a statement (the "Remittance Report") containing the information set forth below with respect to the succeeding Payment Date, with a hard copy thereof to be furnished delivered on the following to Landlordimmediately succeeding Business Day:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year Available Payment Amount and containing statement of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each any portion of the first three Fiscal Quarters of each Fiscal Year (commencing with Available Payment Amount that has been deposited in the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting Collection Account but may not be withdrawn therefrom pursuant to an order of a statement United States bankruptcy court of profit and losscompetent jurisdiction imposing a stay pursuant to ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code;
(ii) the Class A-1 Principal Balance, a balance sheetthe Class A-2 Principal Balance, and statement of cash flowsthe Class A-3 Principal Balance, plus a calculation of EBITDAR for such Fiscal Quarter the Class A-4 Principal Balance, the Class A-5 Principal Balance, the Class A-6 Principal Balance, the Class A-7 Principal Balance, the Class A-8 Principal Balance, the Class A-9 Principal Balance and the applicable prior year Fiscal QuarterPool Principal Balance, as reported in each casethe Remittance Report provided pursuant to subclause (xiii) below for the immediately preceding Payment Date, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 Original Class A-1 Principal Balance, the Original Class A-2 Principal Balance, the Original Class A-3 Principal Balance, the Original Class A-4 Principal Balance, the Original Class A-5 Principal Balance, the Original Class A-6 Principal Balance, the Original Class A-7 Principal Balance, the Original Class A-8 Principal Balance, the Original Class A-9 Principal Balance 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowOriginal Pool Principal Balance;
(iii) As to CEC:
(A) annual financial statements audited by CEC’s Accountant in accordance with GAAP covering such Fiscal Year the number and containing statement Principal Balances of profit and loss, a balance sheet, and statement all Mortgage Loans which were the subject of cash flows for CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 Principal Prepayments during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowrelated Due Period;
(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 all Curtailments which were received during the Facility with respect to the prior Lease 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 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 principal portion of all or any portion of Monthly Payments 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 the 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 (or Manager) from (or to) any Gaming Authorities)related Due Period;
(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 interest received on the Mortgage Loans during the related Due Period;
(vii) the aggregate amount of the Advances made and any improvements thereto, substantially recovered with respect to such Payment Date;
(viii) the delinquency and foreclosure information set forth in the form attached hereto as Exhibit DH and the amount of Mortgage Loan Losses during the related Due Period;
(ix) the Class A-1 Principal Balance, the Class A-2 Principal Balance, the Class A-3 Principal Balance, the Class A-4 Principal Balance, the Class A-5 Principal Balance, the Class A-6 Principal Balance, the Class A-7 Principal Balance, the Class A-8 Principal Balance and the Class A-9 Principal Balance after giving effect to the distribution to be made on such Payment Date;
(x) the weighted average maturity, the weighted average Mortgage Interest Rate of the Mortgage Loans as of the last day of the related Due Period, and the weighted average Net Mortgage Interest Rate as of the last day of the Due Period preceding the related Accrual Period;
(xi) the Servicing Fees paid and Servicing Fees accrued during the related Due Period;
(xii) the amount of all payments or reimbursements to the Servicer pursuant to Section 5.04 (ii), (iv), (v), (vi) and (vii) paid or to be paid since the prior Payment Date (or in the case of the first Payment Date, since the Closing Date);
(xiii) the Pool Principal Balance and aggregate Principal Balance as of the last day of the related Due Period;
(xiv) such additional customary other information as the Certificate Insurer, each Account Party and reasonable financial information the Certificateholders may reasonably require;
(xv) the amounts which are reimbursable to the Servicer, the Representative or the Depositors, as appropriate, pursuant to Section 6.05;
(xvi) the number of Mortgage Loans outstanding at the beginning and at the end of the related Due Period;
(xvii) the aggregate interest accrued on the Mortgage Loans at their respective Mortgage Interest Rates for the related Due Period;
(xviii) the Principal Balance of Mortgage Loans in the Mortgage Pool with Mortgage Interest Rates less than 8.11% per annum and less than 8.01% per annum;
(xix) the Subordinated Amount, the amount on deposit in the Spread Account, the Cumulative Excess Spread Receipts, in each case after giving effect to any payments or withdrawals on such Payment Date, and the Excess Spread with respect to such fixed assets constituting Leased Property Payment Date; and
(xx) The aggregate Mortgage Loan Losses since the Cut-off Date as of the end of the related Due Period. The Trustee shall forward such report to the Certificateholders on the Payment Date, by telecopy, with a hard copy to follow (in the case of the Depository) or by first class mail. The Depositors and the Trustee may fully rely upon and shall have no liability with respect to information 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 and the Trustee may rely upon the telecopy. In the case of information furnished pursuant to subclauses (ii), (iii), (iv), (v) and (ix) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each of the Class A Certificates for each $1,000 original dollar amount as of the Cut-off Date.
(a) Upon reasonable advance notice in writing, the Servicer will provide to the Trustee access to information and documentation regarding the Mortgage Loans sufficient to permit any Holder which is reasonably requested a savings and loan association, bank or insurance company to comply with applicable regulations of the FDIC or other regulatory authorities with respect to investment in the Certificates, as applicable.
(b) The Servicer shall furnish to the Trustee and to the Certificate Insurer, during the term of this Agreement, such periodic, special, or other reports or information not specifically provided for herein, as may be necessary, reasonable, or appropriate with respect to the Trustee or the Certificate Insurer, as the case may be, or otherwise with respect to the purposes of this Agreement, all such reports or information to be provided by Landlord, it being understood that Tenant may classify any asset additions and in accordance with such applicable instructions and directions as the fixed asset methodology Trustee or the Certificate Insurer may reasonably require; provided, that the Servicer shall be entitled to be reimbursed by the requesting party, for propco-opco separation used as the fees and actual expenses associated with providing such reports, if such reports are not generally produced in the ordinary course of the Commencement Date;its business.
(viic) Within three (3) Business Days Reports and computer tapes furnished by the Servicer pursuant to this Agreement shall be deemed confidential and of obtaining actual knowledge of the occurrence of a Tenant Event of Default (proprietary nature, and shall not be copied or of the occurrence of any facts or circumstances which, distributed except in connection with the giving purposes and requirements of notice this Agreement; provided that the Certificate Insurer may copy or distribute such information (A) pursuant to a subpoena or order issued by a court of competent jurisdiction or by a judicial or administrative or legislative body or committee, (B) as may be required in any report, statement or testimony submitted to any Federal, state, municipal or other regulatory body having jurisdiction over the passage of time would ripen into a Tenant Event of Default and that Certificate Insurer, (individually C) in order to comply with any law, ruling, order or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of the 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 regulation applicable to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectivelyCertificate Insurer, or the Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case (D) as may be required by any Fee Mortgagee rating agency or reinsurer. No Person entitled to receive copies of such reports or tapes shall use the information therein for the purpose of soliciting the customers of the Originators or for any other purpose except as an Additional Fee Mortgagee Requirement hereunder set forth in this Agreement.
(d) The Trustee shall promptly send to the Certificate Insurer and to each Certificateholder) in writing:
(i) notice of any reduction in the Specified Spread Account Requirement;
(ii) notice of any reduction of the percentages set forth in the definition of "Monthly Excess Spread Amount";
(iii) notice of the appointment of any Subservicer;
(iv) notice of any transfer of any Account to a different depository institution;
(v) notice of any reduction in the rating of any Letter of Credit Bank below the minimum ratings described in Section 6.11(b);
(vi) a copy of each Officer's Certificate delivered pursuant to Section 7.04 and any notice received from the Servicer of a change in the fiscal year of the Servicer;
(vii) a copy of each letter delivered pursuant to Section 7.05; and
(viii) notice of the receipt by the Trustee of any information regarding the Servicer's servicing activities pursuant to the last paragraph of Section 10.01(c); provided, that in each case the Trustee shall only be required to send such notices and other items to such Persons to the extent required that the Trustee has itself received the related information. The Depositors, the Servicer and the Trustee on behalf of Certificateholders (the "Trust Parties") hereby authorize the Certificate Insurer to include the information contained in reports provided to the Certificate Insurer hereunder (the "Information") on The Bloomberg, an on-line computer based information network maintained by Section 31.3Bloomberg L.P. ("Bloomberg"), or in other electronic or print information services. Without limitation The Trust Parties agree not to commence any actions or proceedings, or otherwise assert any claims, against the Certificate Insurer or its affiliates or any of the foregoingCertificate Insurer's or its affiliates' respective agents, representatives, directors, officers or employees (collectively, the "Certificate Insurer Parties"), arising out of, or related to or in connection with the Existing Fee Mortgagedissemination and/or use of any Information by the Certificate Insurer, Tenant will furnishincluding, but not limited to, claims based on allegations of inaccurate, incomplete or cause erroneous transfer of information by the Certificate Insurer to be furnished, to Landlord on Bloomberg or before twenty-five otherwise (25) days after the end of each calendar month the following items as they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, than 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(xii) Together connection with the monthly reporting required pursuant Certificate Insurer's negligence or willful misconduct). The Trust Parties waive their rights to assert any such claims against the preceding clause Certificate Insurer Parties and fully and finally release the Certificate Insurer Parties from any and all such claims, demands, obligations, actions and liabilities (xi), an updated rent roll and a summary of all leasing activity then taking place at the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later other 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; and
(xix) In connection with the Certificate Insurer's negligence or willful misconduct). The Certificate Insurer makes no representations or warranties, expressed or implied, of any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except kind whatsoever with respect to the Existing Fee Mortgageaccuracy, which adequacy, timeliness, completeness, merchantability or fitness for any particular purpose of any Information in any form or manner. The Certificate Insurer reserves the right at any time to withdraw or suspend the dissemination of the Information by the Certificate Insurer. The authorizations, covenants and obligations of the Trust Parties under this section shall be at irrevocable and shall survive the sole cost and expense of Tenant as provided in the final sentence termination of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlAgreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Eqcc Asset Backed Corp)
Statements. Tenant (a) Not later than 1:00 p.m., California time, on the fifth Business Day prior to each Distribution Date, the Servicer shall furnish or cause deliver to the Trustee by electronic modem a computer file containing the information called for by clauses (i) through (xxiii) below as of the end of the preceding Due Period and such other information as the Trustee shall reasonably require. Not later than 1:00 p.m., California time, on each Determination Date, the Trustee shall deliver to the Servicer 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 one Business Day prior to each Distribution Date the Trustee shall deliver a statement (the "Trustee's Remittance Report") containing the information set forth below with respect to such Distribution Date, which information shall be based upon the information furnished by the following to LandlordServicer upon which the Trustee shall conclusively rely without independent verification or calculation thereof:
(i) As to SPE Tenant: (a) Within ninety (90) days after The Available Funds for each Certificate Group and each Class's Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) from (or to) any Gaming Authorities)Excess Interest for each Loan Group paid as principal;
(vi) the Servicing Fee;
(vii) the Loan Group Balance of each Loan Group and the Pool Balance, in each case 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 and each 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) for each Certificate Group, whether a Trigger Event or a Cumulative Loss Event has occurred and is continuing;
(xi) The number and Principal Balances of 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 R Certificateholders 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;
(xviii) The amount of all payments or reimbursements to the Servicer pursuant to Sections 3.03(ii) and (vi);
(xix) The number of Mortgage Loans in each Loan Group outstanding at the beginning and at the end of the related Due Period;
(xx) For each Certificate Group, the amount of Liquidation Loan Losses experienced during the preceding Due Period and the Loan Losses 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 more days delinquent; the number and Principal Balance of Mortgage Loans which are in foreclosure; and the number and Principal Balance of Mortgage Loans which are REO Property;
(xxii) For each Certificate Group the calculation of the Trigger Event and the Cumulative Loss Event;
(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; and
(xxiv) For each Pre-Funding Distribution Date, the remaining Allocated Pre-Funded Amount. The Trustee shall forward 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. The Servicer shall calculate all items in clauses (i) - (xxiv) above. To the extent that there are inconsistencies between the telecopy of the Trustee's 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.
(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 such Distribution Date and a statement setting forth the Facility), a written notice 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which 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 the Code as from time to time in force.
(e) The Servicer and the Trustee shall furnish to each Certificateholder (if requested in writing), during the term of this Lease;
(xviii) The monthly reporting required pursuant to Section 4.1 hereof; and
(xix) In connection with any Fee Mortgagee SecuritizationAgreement, Tenant shallsuch periodic, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except special or other reports or information, whether or not provided for herein, as shall be necessary, reasonable or appropriate with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information Certificateholder or otherwise with respect to the Propertypurposes 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;
(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, purpose except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information as set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Delta Funding Corp /De/)
Statements. Tenant (a) Not later than 11:00 a.m., Illinois time, on the fifth Business Day prior to each Distribution Date, the Servicer shall furnish or cause deliver to the Securities Administrator by electronic means a computer file containing the information called for by clauses (i) through (xxvi) 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 Securities Administrator shall deliver to the Servicer, the Trustee 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 two Business Days prior to each Distribution Date the Securities Administrator shall deliver to the Trustee a statement (the "Remittance Report") containing the information set forth below with respect to such Distribution Date, which information shall be based upon the information furnished by the following to LandlordServicer upon which the Securities Administrator and the Trustee shall conclusively rely without independent verification or calculation thereof:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of Available Funds for each Fiscal Year (commencing with Certificate Group and each Class' Certificate Rate for the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) from (or to) any Gaming Authorities)Excess Interest for each Loan Group paid as principal;
(vi) the Servicing Fee;
(vii) the Loan Group Balance of each Loan Group and the Pool Balance, in each case 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 number and Principal Balances of 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 reimbursements to the Servicer pursuant to Sections 3.03(ii) and (vi);
(xix) the 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 Loan Losses 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 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) 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 the Class A-6F 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; and
(xxvi) for each Pre-Funding Distribution Date, the remaining Allocated Pre-Funded Amount. The Trustee shall forward 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 Securities Administrator and the Trustee may fully rely upon and shall have no liability with respect to information provided by the Servicer. The Servicer shall calculate all items in clauses (i) - (xxvi) above. 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.
(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 such Distribution Date and a statement setting forth the Facility), a written notice 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which 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 Securities Administrator or the 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, the Securities Administrator and the Trustee shall furnish to each Certificateholder (if requested in writing), during the term of this Lease;
(xviii) The monthly reporting required pursuant to Section 4.1 hereof; and
(xix) In connection with any Fee Mortgagee SecuritizationAgreement, Tenant shallsuch periodic, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except special or other reports or information, whether or not provided for herein, as shall be necessary, reasonable or appropriate with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information Certificateholder or otherwise with respect to the Propertypurposes 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 Securities Administrator 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;
(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, purpose except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information as set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Delta Funding Home Equity Loan Tr 1999-2 Home Equ Loan Ass B)
Statements. Tenant shall furnish or cause to be furnished the following statements to Landlord:
(i) As to SPE Tenant: Within sixty-five (a) Within ninety (9065) days after the end of each Tenant Parent’s Fiscal Year Years (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing 2023 or concurrently with the Fiscal Quarter ending March 31filing by ▇▇▇▇▇▇’s Parent of its annual report on Form 10-K with the SEC, 2018), SPE Tenantwhichever is earlier: (x) ▇▇▇▇▇▇’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP Parent’s Financial Statements; (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 (2y) a certificate, executed by the chief financial officer or treasurer of CEOC the Tenant’s Parent (a) certifying that no Tenant Event of Default default has occurred under this Master Lease or, if such a Tenant Event of Default default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all thereto and (b) setting forth the calculation of which shall be provided within ninety (90) days after the end financial covenants set forth in Section 23.3 hereof in reasonable detail as of each such Fiscal Year (commencing with the Fiscal Year ending December 31, 2017);
2023; and (Bz) 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 report with respect thereto, and (B) certifying that such to Tenant’s Parent’s 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); and
(C) such additional information and unaudited quarterly financial information concerning the Leased Property and from Tenant’s Parent’s accountants, 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to going concern and scope of audit of CEC Tenant’s Parent and its Subsidiaries (excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date of such audit or any projected financial performance or covenant default in any Material Indebtedness or this Master Lease in such twelve month period) and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC Tenant’s Parent 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 examination by CEC▇▇▇▇▇▇’s Accountant Parent’s accountants in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety generally accepted auditing standards;
(90ii) Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of the Tenant’s Parent’s Fiscal Year (commencing with the Fiscal Year fiscal quarter ending December March 31, 2017);
(B) 2023 or concurrently with the filing by ▇▇▇▇▇▇’s Parent of its quarterly unaudited financial statementsreport on Form 10-Q with the SEC, consisting of a statement of profit and losswhichever is earlier, a balance sheet, and statement copy of cash flows Tenant’s Parent’s Financial Statements for CECsuch period, together with a certificate, executed by the chief financial officer or treasurer of CEC Tenant’s Parent (i) certifying that no default has occurred or, if such a default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth the calculation of the financial covenants set forth in Section 23.3 hereof in reasonable detail as of such quarter, to the extent one complete Test Period has been completed which has commenced following the date of this Master Lease and (iii) certifying that such Financial Statements fairly present, in all material respects, the financial position and ACTIVE/119970514.22 results of operations of CEC Tenant’s Parent 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(Ciii) Promptly following ▇▇▇▇▇▇▇▇’s request from time to time, (a) five-year forecasts of Tenant’s income statement and balance sheet covering such quarterly and annual periods as may be reasonably requested by Landlord, and in a format consistent with Tenant Parent’s quarterly and annual financial statements filed with the SEC, and such additional financial information and projections as may be reasonably requested by Landlord in connection with syndications, private placements, or public offerings of GLP’s or Landlord’s debt securities or loans or equity or hybrid securities and (b) 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, Tenant as Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP may require for any its ongoing filings with or reports to (i) the SEC under both the Securities Act and the Securities Exchange ActAct of 1934, as amended, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP during the Term of this Master Lease, (ii) the Internal Revenue Service (including in respect of Landlord REITGLP’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo GLP or Landlord REIT its Subsidiaries subject to Section 23.1(c) below);
(iv) As soon as it is prepared and in no event later than sixty Within thirty-five (6035) days after the end of each Fiscal Yearcalendar month, a copy of Tenant’s income statement for such month and Tenant’s balance sheet as of Net Revenue the end of such month (which may be subject to quarterly and year-end adjustments and the absence of footnotes); provided, however, that with respect to each calendar quarter, Tenant shall provide such financial reports for the Facility with respect to final month thereof as soon as is reasonably practicable following the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect closing of the periodic determination of books for such month and in sufficient time so that Landlord or its Affiliate is able to include the Variable Rent hereunderoperational results for the entire quarter in its current Form 10-Q or Form 10-K (or supplemental report filed in connection therewith);
(v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity 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 the Facility (Property; 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 (or Manager) from (or to) any Gaming Authorities);
(vi) Within ten As soon as it is prepared and in no event later than sixty (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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (2560) days after the end of each calendar month the following items as they pertain to SPE Tenant: (A) Fiscal Year, a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room and entertainment operating metrics for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses capital and operating income (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant Facility for each that Fiscal Year, which shall
(vii) Tenant further agrees to provide the financial and operational reports to be delivered to Landlord no later than fifty-five under this Master Lease in such electronic format(s) as may reasonably be required by Landlord from time to time in order to (55i) days following the commencement of the Fiscal Year facilitate ▇▇▇▇▇▇▇▇’s ACTIVE/119970514.22 internal financial and reporting database and (ii) permit Landlord to which such operating budget relates;calculate any rent, fee or other payments due under Ground Leases.
(xivviii) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant ▇▇▇▇▇▇ also agrees that Landlord shall have audit rights 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 any such information provided 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgageextent such audit is reasonably required to confirm Tenant’s compliance with the Master Lease terms (including, which shall be at without limitation, the sole cost and expense calculation of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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), Net Revenues 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;
(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 Mortgageconfirm Tenant’s compliance with Section 23.3(a) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”Master Lease). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landl.
Appears in 1 contract
Statements. Tenant (a) No later than each Determination Date, the Servicer shall furnish or cause deliver to the Indenture Trustee by facsimile, the receipt and legibility of which shall be confirmed by telephone, and with hard copy thereof to be furnished delivered no later than one (1) Business Day after such Determination Date, the Servicer's Monthly Remittance Report, setting forth the date of such Report (day, month and year), the name of the Issuer (i.e. "DiTech Home Loan Owner Trust 1997-1"), the Series designation of the Notes (i.e. "Series 1997-1") and the date of this Agreement, all in substantially the form set out in Exhibit B hereto. Furthermore, no later than each Determination Date, the Servicer shall deliver to the Indenture Trustee a magnetic tape or computer disk providing such information regarding the Servicer's activities in servicing the Home Loans during the related Due Period as the Indenture Trustee may reasonably require.
(b) On each Distribution Date, Indenture Trustee shall distribute, based on information provided by the Servicer, a monthly statement (the "Distribution Statement") to the Depositor, the Owner Trustee, the Securityholders and the Rating Agencies, stating the date of original issuance of the Notes (day, month and year), the name of the Issuer (i.e. "DiTech Home Loan Owner Trust 1997-1"), the Series designation of the Notes (i.e., "Series 1997-1"), the date of this Agreement and the following to Landlordinformation:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with Available Collection Amount and Available Distribution Amount for the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 the Class Principal Balance of each Class of Notes before and after giving effect to CEOC:
(A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering distributions made to the holders of such Fiscal Year and containing statement of profit and loss, a balance sheetNotes on such Distribution Date, and statement of cash flows for CEOC, together with (1) a report thereon by such Accountant which report shall be unqualified the Pool Principal Balance 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) last day of the Code)) 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) belowrelated Due Period;
(iii) As the Class Factor with respect to CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Class of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowNotes then outstanding;
(iv) As soon as it is prepared the amount of principal, if any, and in no event later than sixty (60) days after interest to be distributed to each Class of Notes on the end of each Fiscal Year, a statement of Net Revenue with respect to the Facility with respect to the prior Lease 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 Distribution Date;
(v) Prompt Notice with respect to Landlord 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 TenantNotes, 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 the 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 (or Manager) from (or to) any Gaming Authorities)Optimal Principal Balance thereof;
(vi) the Overcollateralization Deficiency Amount, and any amount to be distributed to the Noteholders or the holders of the Residual Interest on such Distribution Date;
(vii) the Servicing Compensation, the Indenture Trustee Fee, the Owner Trustee Fee and, the Custodian Fee, if any, for such Distribution Date;
(viii) the Overcollateralization Amount on such Distribution Date, the Overcollateralization Target Amount as of such Distribution Date, the Net Loan Losses incurred during the related Due Period, the cumulative Net Loan Losses as of such Distribution Date, the Allocable Loss Amount for such Distribution Date and the application of the Allocable Loss Amount Priority for such Distribution Date;
(ix) the weighted average maturity of the Home Loans and the weighted average Home Loan Interest Rate of the Home Loans;
(x) certain performance information, including, without limitation, delinquency and foreclosure information with respect to the Home Loans and 60-Day Delinquency Amounts (as defined in the definition of "Six-Month Rolling Delinquency Average" in Section 1.01 hereof), as set forth in the Servicer's Monthly Remittance Report;
(xi) the number of and aggregate Principal Balance of all Home Loans in foreclosure proceedings 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 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 (and cumulatively, from the Closing Date through the most current Due Period), the number and aggregate Principal Balance of Home Loans for each of the following: (A) that became Defaulted Home Loans, (B) that became Liquidated Home Loans, (C) that became Deleted Home Loans pursuant to Section 3.05 hereof as a result of such Deleted Home Loans being Defective Home Loans, and (D) that became Deleted Home loans pursuant to Section 3.05 hereof as a result of such Deleted Home Loans being Defaulted Home Loans or a Home Loan in default or imminent default, including the foregoing amounts by loan type (i.e., Combination Loans, or Debt Consolidation Loans);
(xv) the scheduled principal payments and the principal prepayments received with respect to the Home Loans during the Due Period and the cumulative principal prepayment received since the Cut-off Date;
(xvi) the number and aggregate Principal Balance of Home Loans that were 30, 60 or 90 days Delinquent as of the close of business on the last day of the related Due Period; and
(xvii) the aggregate Principal Balance of each Loan which has become a Liquidated Loan since the Cut-Off Date, also expressed as a percentage Pool Principal Balance. In the case of information furnished to Securityholders pursuant to subclause (b)(iv) of this Section 6.01, the amounts shall be expressed as a dollar amount per Note with a $1,000 Denomination. All reports prepared by the Indenture Trustee of the withdrawals from and deposits into the Collection Account will be based in whole or in part upon the information provided to the Indenture Trustee by the Servicer, and the Indenture Trustee may fully rely upon and shall have no liability with respect to such information provided by the Servicer.
(c) 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 that at any improvements thereto, substantially in time during the form attached hereto as Exhibit D, and calendar year was a Securityholder 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 subclause (b)(iv) of this Section 6.01, 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 Distribution Date, the fixed asset methodology for propco-opco separation used as Indenture Trustee shall forward to the holders of the Commencement Date;
(vii) Within three (3) Business Days of obtaining actual knowledge Residual Interest Certificates a copy 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 Distribution Statement in respect of such Distribution Date and a statement setting forth the Facility), a written notice amounts actually distributed to Landlord regarding the same, which notice shall include a detailed description such holders of the Tenant Event of Default (Residual Interest Certificates on such Distribution Date, together with such other information as the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 SPE Tenant: (A) each Person that at any time during the calendar year was a rent roll for holder of Residual Interest Certificates, 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 holder of all leasing activity then taking place at the Facility;Residual Interest Certificates.
(xiiif) Operating budget for The Indenture Trustee shall forward to each SPE Tenant for Noteholder and each Fiscal Yearholder of a Residual Interest Certificate, which shall be delivered to Landlord no later than fifty-five (55) days following during the commencement term 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)this Agreement, such further detailed periodic, special or other reports, including 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 tax returns or reports 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee MortgageNotes and the Residual Interest Certificates, which as shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix))necessary, reasonably cooperate with Landlord in providing information reasonable, or appropriate with respect to the PropertyNoteholders or the holders of Residual Interest Certificates, 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;
(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, except otherwise with respect to the Existing Fee Mortgagepurposes of this Agreement, all such Disclosure Document reports or information in the case of the Residual Interest Certificates to be provided by and in accordance with such applicable instructions and directions as the Majority Residual Interestholders may reasonably require.
(g) Reports and computer tapes furnished by the Servicer and the Indenture Trustee pursuant to this Agreement shall be deemed confidential and of a proprietary nature and 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 be copied or any information subject to bona fide confidentiality restrictions; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, distributed except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant purposes and requirements of this Agreement. No Person entitled to receive copies of such reports or tapes shall (I) be responsible use the information therein for the costs purpose of soliciting the customers of the Existing Fee Mortgagee in connection therewith to Depositor or the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord Servicer or for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared other 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 Landlthis Agreement.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Ditech Funding Corp Home Loan Owner Trust 1997-1)
Statements. Tenant shall furnish or cause to be furnished the following to Landlord:
(i) As to SPE Tenant: (a) Within ninety (90) days after No later than each Determination Date, the end of each Fiscal Year (commencing with Servicer shall deliver to the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Indenture Trustee and the applicable prior year Fiscal Quarter, Securities Insurer a magnetic tape or computer disk providing such information regarding the Servicer's activities in each case, to servicing the extent required Home Loans during the related Due Period as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 Indenture Trustee and the absence of footnotes);Securities Insurer may reasonably require.
(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 Subject to the modification of the Servicer's Monthly Statement by such Accountant which report shall be unqualified as to scope the Servicer with the prior written consent 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 Securities Insurer 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 certificateIndenture Trustee, 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 before each Distribution Date, the Servicer shall prepare and the Indenture Trustee shall distribute a monthly statement (the "Servicer's Monthly Statement") to the Seller, the Securityholders, the Securities Insurer and the Rating Agencies, stating the date of obtaining actual knowledge original issuance of the occurrence of a Tenant Event of Default Securities (or day, month and year), the name of the occurrence of any facts or circumstances which, with Issuer (i.e. "FIRSTPLUS
(i) the giving of notice or Available Collection Amount and Required Distribution Amount for the passage of time would ripen into a Tenant Event of Default and that related Distribution Date;
(individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of ii) the 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, on deposit in the Pre-Funding Account and the Capitalized Interest Account on such Distribution Date;
(iii) the Class Principal Balance of each Class of Notes, the Certificate Principal Balance of the Certificates, and the Pool Principal Balance (including, until the Funding Period ends, the amount remaining in the Pre-Funding Account and the Capitalized Interest Account as of such Distribution Date) as of the first day of the related Due Period and after giving effect to remedy distributions made to the holders of such Tenant Event Securities on such Distribution Date;
(iv) the Class Pool Factor with respect to each Class of Default Notes then outstanding and the Certificate Pool Factor with respect to the Certificates then outstanding;
(v) the amount of principal and interest received on the Home Loans during the related Due Period;
(vi) the Noteholders' Distributable Amount and the Certificateholders' Distributable Amount;
(vii) the amount, if any, of the Excess Overcollateralization Amount and, if applicable, the Overcollateralization Reduction Amount or any other amount to be distributed to the Securityholders or the holders of the Residual Interest on such facts or circumstances)Distribution Date;
(viii) Such additional customary and reasonable financial information related to the FacilityServicing Compensation, Tenantthe Indenture Trustee Fee, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the Facility or the business of Tenant conducted thereat required pursuant to the Owner Trustee 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, in the form attached hereto as Exhibit IGuaranty Insurance Premium for such Distribution Date;
(ix) The compliance certificatesthe Overcollateralization Amount on such Distribution Date, the Required Overcollateralization Amount as of such Distribution Date, the Net Loan Losses incurred during the related Due Period and when required pursuant to Section 4.3the cumulative Net Loan Losses as of such Distribution Date;
(x) The Annual Capital Budget as the Reserve Account Requirement and when required the amount remaining on deposit in Section 10.5the Reserve Account on such Distribution Date after giving effect to the distributions made to Securityholders on such Distribution Date;
(xi) The monthly revenue the weighted average maturity of the Home Loans and Capital Expenditure reporting required pursuant to Section 10.5(b);
the weighted average Home Loan Interest Rate of the Home Loans; 80 (xii) Together with the monthly reporting required pursuant to the preceding clause (xi)certain performance information, an updated rent roll including delinquency and a summary of all leasing activity then taking place at the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing foreclosure information with respect to the PropertyHome Loans, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information as set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlServicer's Monthly Remittance Report;
Appears in 1 contract
Sources: Sale and Servicing Agreement (Firstplus Investment 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 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 SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Available Funds and the applicable prior year Fiscal Quarter, in Certificate Rate for each case, to Class for the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 I 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 October 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 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 such Distribution Date and a statement setting forth the Facility), a written notice 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which 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 Perons 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; and
(xix) In connection with any Fee Mortgagee SecuritizationAgreement, Tenant shallsuch periodic, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except special or other reports or information, whether or not provided for herein, as shall be necessary, reasonable or appropriate with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information Certificateholder or otherwise with respect to the Propertypurposes 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;
(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, purpose except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information as set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Renaissance Mort Accept Corp Home Equity Ln as Bk Ce Se 03-3)
Statements. Tenant (a) No later than each Determination Date, the ---------- Servicer shall furnish deliver to the Indenture Trustee a magnetic tape or cause computer disk providing such information regarding the Servicer's activities in servicing the Home Loans during the related Due Period as the Indenture Trustee may reasonably require.
(1) Subject to be furnished the modification of the Servicer's Monthly Statement by the Servicer with the prior written consent of the Majority Securityholders and the Indenture Trustee, no later than three (3) Business Days before each Payment Date, the Servicer shall prepare and the Indenture Trustee shall distribute a monthly statement (the "Servicer's Monthly Statement", with respect to such Payment Date) to the Seller, 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., "FIRSTPLUS Home Loan Owner Trust 1998-4"), the series designation of the Securities (I.E., "Series 1998-4"), the date of this Agreement and the following to Landlordinformation:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with Available Collection Amount, the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Regular Payment Amount and the applicable prior year Fiscal Quarter, in each case, to Excess Spread for the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 Payment Date;
(ii) As the amount, if any, on deposit in the Pre-Funding Account on such Payment Date;
(iii) the Class Principal Balance of each Class of Securities (and the Component Principal Balance or Component Notional Balance, as applicable, of the Components of the Residual Interest Certificate), 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;
(iv) the Class Pool Factor with respect to each Class of Securities then outstanding, carried to seven decimal places;
(v) the amount of principal and interest received on the Home Loans during the related Due Period;
(vi) the amount, if any, of the Overcollateralization Surplus;
(vii) the Servicing Compensation for such Payment Date;
(viii) the Overcollateralization Amount with respect to such Payment Date, the Required Overcollateralization Amount as of such Payment Date, the Net Loan Losses incurred during the related Due Period and the cumulative Net Loan Losses with respect to such Payment Date;
(ix) the amount, if any, paid on such Payment Date to each Class of Subordinate Securities in respect of Deferred Amounts;
(x) with respect to each Class of Subordinate Securities and the B-2 Component of the Residual Interest Certificate, the amount of any applicable Deferred Amounts remaining unreimbursed after giving effect to payments made on such Payment Date;
(xi) 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;
(xii) certain performance information, including delinquency and foreclosure information with respect to the Home Loans, as set forth in the Servicer's Monthly Remittance Report;
(xiii) the amount of any Servicing Advance Reimbursement Amount to be paid to the Servicer on such Payment Date, and the amount of any Servicing Advance Reimbursement Amount remaining unpaid following such payment;
(xiv) 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;
(xv) 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;
(xvi) 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;
(xvii) 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)loan type;
(Bxviii) quarterly unaudited financial statementsfrom the Closing 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, in all material respects, default or imminent default;
(xix) 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 scheduled principal payments and the absence principal prepayments received with respect to the Home Loans during the related Due Period;
(xx) the number of footnotes), all of which shall be provided (x) within sixty (60) days after Home Loans remaining in the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018)Home Loan Pool; and
(Cxxi) such additional other information as may be reasonably requested by the Indenture Trustee.
(2) No later than three (3) Business Days before each Payment Date, the Servicer shall prepare and unaudited quarterly financial distribute to the Seller 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) as a result of such Deleted Home Loans being Defective Home Loans, from the Closing Date through the most current Due Period.
(3) No later than seven days following a repurchase or substitution pursuant to Sections 2.06, 3.05 or 4.02, the Servicer shall notify each Rating Agency of the aggregate principal balances of the Home Loans repurchased or substituted and (if applicable) the relevant Substitution Adjustment. All reports prepared by the Servicer of the withdrawals from and deposits in the Collection Account will be based in whole or in part upon the 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 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries fully rely upon and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 have no event later than sixty (60) days after the end of each Fiscal Year, a statement of Net Revenue liability with respect to such information provided by the Facility with respect to the prior Lease Year (subject to 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 the 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 (or Manager) 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 Servicer shall prepare and direct the Indenture Trustee to 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)(iv) and (v) 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 Securityholder. Such obligation of the Commencement Date;Indenture Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be provided by the Servicer to the Securityholders pursuant to any requirements of the Code as are in force from time to time.
(viid) Within three (3) Business Days of obtaining actual knowledge On each Payment Date, the Indenture Trustee shall forward to DTC and to the holder of the occurrence of Residual Interest Certificate a Tenant Event of Default (or copy 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 Servicer's Monthly Statement in respect of such Payment Date and a statement setting forth the Facility), a written notice amounts actually distributed to Landlord regarding the same, which notice shall include a detailed description holder of the Tenant Event of Default (Residual Interest Certificate on such Payment Date, together with such other information as the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 Servicer shall prepare and direct the Indenture Trustee to distribute to each Person who at any time during the calendar year was the holder of the Residual Interest Certificate, if requested in writing by such Person, such information as they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;Residual Interest Certificate. Such obligation of the Indenture Trustee shall be deemed to have been satisfied to the extent that substantially comparable information shall be provided by the Servicer to the holder of the Residual Interest Certificate pursuant to any requirements of the Code as are in force from time to time.
(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 Servicer or its agent shall furnish to the Indenture Trustee, who in respect of Bookings required pursuant turn shall forward 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee MortgageSecurities, which including Internal Revenue Service Forms 1099 and (if instructed in writing by the Seller on the basis of the advice of legal counsel) and other similar reports that are required to be filed by the Servicer or its agent and the holder of Residual Interest Certificate, whether or not provided for herein, as shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix))necessary, reasonably cooperate with Landlord in providing information reasonable, or appropriate with respect to the PropertySecurityholders or the holders of the Residual Interest Certificate, 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;
(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, except otherwise with respect to the Existing Fee Mortgagepurposes of this Agreement, all such Disclosure Document reports or information to be provided by and in accordance with such applicable instructions and directions as the Securityholders may reasonably require.
(h) Reports and computer tapes furnished by the Servicer and the Indenture Trustee pursuant to this Agreement shall be deemed confidential and of proprietary nature, and 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 be copied or any information subject to bona fide confidentiality restrictions; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, distributed except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant purposes and requirements of this Agreement. No Person entitled to receive copies of such reports or tapes shall (I) be responsible use the information therein for the costs purpose of soliciting the customers of the Existing Fee Mortgagee in connection therewith to Seller or the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord Servicer or for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared other 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 Landlthis Agreement.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Firstplus Investment 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 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 SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Available Funds and the applicable prior year Fiscal Quarter, in Certificate Rate for each case, to Class for the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 I 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 October 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 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 such Distribution Date and a statement setting forth the Facility), a written notice 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which 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; and
(xix) In connection with any Fee Mortgagee SecuritizationAgreement, Tenant shallsuch periodic, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except special or other reports or information, whether or not provided for herein, as shall be necessary, reasonable or appropriate with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information Certificateholder or otherwise with respect to the Propertypurposes 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;
(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, purpose except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information as set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Renaissance Mort Accept Corp Home Equity Ln as Bk Ce Se 03-3)
Statements. Tenant shall furnish or cause to be furnished the following statements to Landlord (which ▇▇▇▇▇▇ acknowledges and agrees may be provided by Landlord to any Landlord:’s Parent, MGP REIT and ▇▇▇▇▇):
(i) As On the earlier of five (5) Business Days following (x) each date specified in the Exchange Act and the SEC’s related rules and regulations (including any additional time permitted under Rule 12b-25 or any successor provision thereof) that the Tenant’s Parent is (or would be, as a large accelerated filer, if not required to SPE file SEC Reports at that time) required to file SEC Reports (each a “SEC Filing Deadline”) and (y) the date the Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing ’s Parent files its SEC Reports with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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:
SEC: (A) annual financial statements audited by CEOCTenant’s Accountant Parent’s Financial Statements required to be included in accordance with GAAP covering such Fiscal Year and SEC Report (or which would be, if not required to file SEC Reports at that time) or the SEC Report 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 Statements; (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 a Responsible Officer of CEOC Tenant certifying that no Tenant Event of Default default has occurred under this Lease or, if such a Tenant Event of Default default has occurred, specifying the nature and extent thereof status of such default; and any corrective action taken or proposed to be taken (C) (1) with respect theretoto annual Financial Statements, all a report with respect to Tenant’s Parent’s Financial Statements from Tenant’s Parent’s independent registered public accounting firm, which report shall not be subject to any qualification or exception expressing substantial doubt about the ability of which shall be provided within ninety the Tenant’s Parent and its Subsidiaries to continue as a “going concern” or any exception as to the scope of such audit (90excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date such report is delivered or any projected financial performance or covenant default in any Indebtedness or this Lease in such twelve month period) days after the end of each Fiscal Year (commencing and that such Financial Statements have been prepared in accordance with GAAP and Tenant’s Parent’s accountants have examined such Financial Statements in accordance with the Fiscal Year ending December 31standards of the PCAOB (or generally accepted auditing standards, 2017);
if not required to file SEC Reports at such time) and (B2) with respect to quarterly unaudited financial statementsFinancial 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 a Responsible Officer of the chief financial officer or treasurer of CEOC (A) certifying that no Tenant Event of Default has occurred orTenant’s Parent, 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 Tenant’s Parent and its Subsidiaries on a consolidated basis in accordance with GAAP as at such date and for such period (subject to normal year-end audit adjustments and adjustments, the absence of footnotesfootnotes and other informational disclosures customarily omitted from interim financial statements), all of which . Financial statements required to be delivered pursuant to this Section 23.1(b)(i) will be deemed delivered to the extent such documents are included in materials filed with the SEC and shall be provided deemed to have been delivered on the date such documents are publicly available on the SEC’s website;
(xii) within Within sixty (60) days after the end of each of the first three Tenant’s Fiscal Quarters of each Fiscal Year Years (commencing with the Fiscal Quarter Year ending March December 31, 20182020); and, (a) a budget and projection by fiscal quarter for the Fiscal Year in which the budget is delivered, including projected Net Revenue, Net Income, EBITDA, EBITDAR, Net Revenue by division, and Operating Expenses by division with respect to each Operating Subtenant (or Tenant with respect to any portion of a Facility that is not subject to an Operating Sublease), (b) a budget and projection by fiscal year for the second and third subsequent Fiscal Years, including projected Net Revenue, EBITDA, EBITDAR with respect to each Operating Subtenant (or Tenant with respect to any portion of a Facility that is not subject to an Operating Sublease), (c) a capital budget for each Operating Subtenant for the following Fiscal Year. EBITDA shall be calculated in accordance with Exhibit L.
(Ciii) Within twenty (20) days after the expiration of any calendar quarter, Tenant shall deliver to Landlord a Financial Covenant compliance report in substantially in the form attached hereto as Exhibit J, which shall include a calculation of the Financial Covenant and Listing Covenant under Section 23.3 as of the relevant date as applicable, based upon the preliminary statements for such Test Period (the “Preliminary Financial Covenant Compliance Report”).
(iv) Within sixty (60) days after the expiration of any calendar quarter, Tenant shall deliver to Landlord a Financial Covenant compliance report in substantially in the form attached hereto as Exhibit J, which report shall include an Officer’s Certificate certifying (1) that the Financial Covenant and Listing Covenant are in compliance under Section 23.3 together with reasonable detail evidencing such compliance, and (2) that such items are true, correct, accurate, and complete and fairly present the financial condition and results of the operations of the Operating Subtenants (or Tenant with respect to any portion of a Facility that is not subject to an Operating Sublease) (subject to normal year-end adjustments) as of the relevant date as applicable (the “Final Financial Covenant Compliance Report”).
(v) Within sixty (60) days after the expiration of any calendar quarter, Tenant shall deliver to Landlord a quarterly operating report in substantially the form attached hereto as Exhibit M, accompanied by an Officer’s Certificate stating that such items in such quarterly operating report are true, correct, accurate, and complete and fairly present the financial condition and results of the operations of the Operating Subtenants (or Tenant with respect to any portion of a Facility that is not subject to an Operating Sublease) (subject to normal year-end adjustments) as of the relevant date as applicable, which reports shall include: (a) an occupancy report including the average daily rate and Net Revenue per available room and (b) quarterly, year to date and trailing twelve months operating statements noting Net Revenue, Net Income, EBITDA, EBITDAR, Net Revenue by division, Operating Expenses by division.
(vi) Commencing with the year ended December 31, 2020, Tenant will furnish to Landlord annually within one hundred twenty (120) days following the end of such Fiscal Year, a complete copy of the Tenant’s and Operating Subtenants’ combined audited annual financial report with statements in accordance with GAAP covering the Facilities, which shall be accompanied by a report from an Approved Accounting Firm, which report shall indicate that such financial statements are prepared in accordance with GAAP as of such date and shall not be subject to any qualification or exception expressing substantial doubt about the ability of Tenant and Operating Subtenants, collectively, to continue as a “going concern” or any exception as to the scope of such audit (excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date such report is delivered or any projected financial performance or covenant default in any Indebtedness or this Lease in such twelve month period). Promptly following receipt by Landlord of each audited annual financial report, together with reasonable evidence of the third-party costs and expenses incurred by Tenant or its Affiliates in connection with such report, Landlord shall be required to reimburse Tenant or its Affiliates for one-half of all such third-party costs and expenses incurred by Tenant or its Affiliates.
(vii) Tenant will furnish to Landlord annually within ninety (90) days following the end of such Fiscal Year, the Annual Certificate.
(a) Such additional financial information and projections as may be reasonably requested by Landlord in connection with syndications, private placements or public offerings by or on behalf of Landlord of debt securities or loans or equity or hybrid securities and (b) 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, Tenant as Landlord, PropCo 1, PropCo Landlord or Landlord REIT its Affiliates may require for any ongoing their 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 SEC Reports and registration statements to be filed by Landlord, PropCo 1, PropCo Landlord or Landlord REIT its Affiliates during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo Landlord or Landlord REIT, in each case of clause (i), (ii) and (iii), subject to Section 23.1(c) below;
(iii) As to CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance or Affiliates; provided, however, that (a) such consolidated financial statements present fairly if the consolidated financial position of CEC and SEC requires Landlord or 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 CECAffiliates to include Tenant’s Accountant in connection with such Parent’s Financial Statements has been made in accordance with GAAPits SEC Reports, which Tenant shall be provided within ninety use its commercially reasonable efforts to furnish substantially complete drafts of Tenant’s Parent’s annual Financial Statements to Landlord no later than fifty-five (9055) calendar days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017);
(B) such year and Tenant Parent’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC and its Subsidiaries on a consolidated basis in accordance with GAAP to Landlord no later than thirty-five (subject to normal year-end audit adjustments and the absence of footnotes35) which shall be provided within sixty (60) calendar days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);such quarter.
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect of the periodic determination of the Variable Rent hereunder);
(vix) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity 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 materially 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 material part of the Primary Intended Use of all or any portion of the Leased Property which, in any case Property.
(x) Tenant further agrees to provide the financial and operational reports to be delivered to Landlord under this clause Lease in such electronic format(s) as may reasonably be required by Landlord from time to time in order to facilitate Landlord’s internal financial and reporting database. ▇▇▇▇▇▇ also agrees that Landlord shall have audit rights with respect to such information to the extent required to confirm Tenant’s compliance with the terms of this Lease (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of the Facility (andincluding, without limitation, Tenant shall (A) keep Landlord apprised calculation of (1) the status of any annual or other periodic Gaming License renewals, EBITDAR 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 (or Manager) 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 expenditures with respect to such fixed assets constituting Leased Property Required CapEx). Tenant shall not change the accounting practices or policies described in this Lease for the purpose of calculating EBITDAR and expenditures with respect to Required CapEx, which the parties agree is based on Tenant’s Existing Accounting Guidelines. Furthermore, Tenant will not enter into any “off balance sheet arrangement” outside the normal course of operations as is reasonably requested by Landlord, it being understood that Tenant may classify any asset additions determined in accordance with the fixed asset methodology for propco-opco separation used GAAP 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landl.
Appears in 1 contract
Sources: Master Lease (MGM Growth Properties Operating Partnership LP)
Statements. Tenant Each month for so long as a Class of Auction Rate Certificates is Outstanding, not later than 12:00 noon New York time on the Auction Reporting Date, the Servicer shall furnish or cause deliver to be furnished the following to Landlord:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Certificate Insurer and the applicable prior year Fiscal QuarterTrustee, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respectstelecopy, the financial position receipt and results of operations of 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 legibility of which shall be provided within ninety (90) days after confirmed telephonically, with hard copy thereof to be delivered on the end of each Fiscal Year (commencing with Business Day following the Fiscal Year ending December 31, 2017);
(B) quarterly unaudited financial statements, consisting of a statement of profit and lossDetermination Date, a balance sheetcertificate signed by a Servicing Officer stating the date (day, month and year), the Series number of the Certificates, the date of this Agreement, 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 amount to be taken with respect theretodistributed on the upcoming Remittance Date to each Class of Auction Rate Certificates as a payment of principal. Each month, and (B) certifying that such Financial Statements fairly present, in all material respectsnot later than 12:00 noon New York time on the Determination Date, the financial position Servicer shall deliver to the Certificate Insurer and results of operations of CEOC to the Trustee, by telecopy, for distribution to the Certificateholders, the receipt and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all legibility of which shall be provided (x) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing confirmed telephonically, with the Fiscal Quarter ending March 31, 2018); 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 hard copy thereof 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 Servicer's Monthly Computer Tape in the form attached hereto as Exhibit DR (both in hard copy and in computer tape form) to be delivered on the Business Day following the Determination Date, a certificate signed by a Servicing Officer (a "Servicer's Certificate") stating the date (day, month and year), the Series number of the Certificates, the date of this Agreement, and such additional customary and reasonable financial information with respect the following:
(i) the Pool Available Remittance Amounts for each Pool for the related Remittance Date;
(ii) the Class Principal Balances for each Class of Class A Certificates as reported in the prior Servicer's Certificate pursuant to such fixed assets constituting Leased Property as is reasonably requested by Landlordsubclause (xv) below, it being understood that Tenant may classify any asset additions or, in accordance with the fixed asset methodology for propco-opco separation used as case of the Commencement first Determination Date, the Original Principal Balance for each Class of Class A Certificates;
(iii) the Pool Principal Distribution Amounts for each Pool for the related Remittance Date, in the aggregate and listed separately for the portions relating to each Class of Class A Certificates;
(iv) the total amount of any Insured Payments included in the Pool Available Remittance Amount for each Pool for the related Remittance Date;
(v) the Subordinated Amount and Specified Subordinated Amount for the related Remittance Date, listed separately for each Pool;
(vi) the number and Principal Balances of all Loans in each Pool which were the subject of Principal Prepayments during the Due Period;
(vii) Within three (3) Business Days the amount of obtaining actual knowledge of all Curtailments which were received during the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances whichDue Period, 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 the 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)stated separately for each Pool;
(viii) Such additional customary the aggregate amount of all Excess Payments and reasonable financial information related the amounts of Monthly Payments in respect of principal received during the Due Period, 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 FacilityDetermination Date, Tenant, CEOC, CEC and their Affiliates which shall the portion of the Monthly Advances to be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or deposited in the Facility or the business of Tenant conducted thereat required Certificate Accounts pursuant to Section 6.01(a)(ii), and the Fee Mortgage Documents, within Compensating Interest payment to be made on the applicable timeframes required thereunder)Determination Date, 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics for the subject month; (B) monthly and year-to-date operating statements prepared stated separately for each calendar month, noting gross revenue, net revenue, operating expenses Pool;
(xi) the delinquency and operating income (not including any contributions to the FF&E Reserve), and other foreclosure information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, set forth in the form attached hereto as Exhibit I;
(ix) The compliance certificatesO, as and when required pursuant to Section 4.3;
(x) The Annual Capital Budget as and when required in Section 10.5;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b)stated separately for each Pool;
(xii) Together with the monthly reporting required pursuant to amount of any Realized Losses incurred during the preceding clause (xi)related Due Period, an updated rent roll and a summary of all leasing activity then taking place at the Facilitystated separately for each Pool;
(xiii) Operating budget the Pool Remittance Amounts for each SPE Tenant Pool for the Remittance Date, in the aggregate and by component and listed separately for the portions relating to each Fiscal YearClass of Class A Certificates in the related Pool and, which shall with respect to the Auction Rate Certificates, the amount otherwise required to be delivered distributed thereon with respect to Landlord no later than fifty-five (55) days following principal and retained in the commencement of the Fiscal Year Certificate Account for Pool II pursuant to which such operating budget relatesSection 6.08(f);
(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 the Reimbursable Amounts and the Class X Remittance Amount payable pursuant to Section 22.7 of this Lease;
(xvi6.08(d)(iii) 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(Cv) with respect to the Existing Fee Mortgage, deliver a certification to Landlord Remittance Date; (ixv) certifying that the information set forth in such portions Class Principal Balance for each Class of any Disclosure Document approved by Tenant pursuant Class A Certificates and the Pool Principal Balance for each Pool after giving effect to the above clause (B) does not at distribution to be made on the time furnished contain any untrue statement Remittance Date and after allocation of any material fact and (ii) certifying as to the accuracy of the representations Realized Losses made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlRemittance Date;
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Money Store Home Equity 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. 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 SPE Tenant: (a) Within ninety (90) days after the end of Available Funds for each Fiscal Year (commencing with Certificate Group and each Class' Certificate Rate for the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 Required Overcollateralization Amount as of the Facility)close of business on the Distribution Date, after giving effect to distributions of principal on such Distribution Date;
(x) whether a written notice to Landlord regarding Cumulative Loss Event or a Delinquency Event has occurred and is continuing and the samecalculation thereof;
(xi) the number and Principal Balances of 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, which notice shall include a detailed description the amount of the Tenant Event 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 Default 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; and
(xxv) 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 report to the FacilityServicer, Tenantthe Seller, CEOCthe Certificate Insurer, CEC the Certificateholders, the Rating Agencies, Bloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) and their Affiliates which shall be limited to balance sheets and income statements Intex Solutions (andat ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, without limitation▇▇▇▇▇▇▇, all information concerning Tenant▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, CEOC, CEC and any of their Affiliates, respectively, or Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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), (ii) or (iii) of this parenthetical), (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 extent reasonably requested 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 such Fee Mortgagee 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 satisfy make such distribution more convenient and/or more accessible to the market standards above parties and the Trustee shall provide timely and adequate notification to which all above parties regarding any such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies;changes.
(Bb) reviewWithin a reasonable period of time after the end of each calendar year, re-review andthe Trustee shall furnish to each Person who at any time during the calendar year was a Holder of a Regular Certificate, 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 if requested in writing 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, except with respect to the Existing Fee Mortgagesuch Person, 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 as is reasonably necessary to bona fide confidentiality restrictions; and
(C) with respect provide to the Existing Fee Mortgage, deliver such Person a certification to Landlord (i) certifying that statement containing the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause subclauses (Biii) does not at the time furnished contain any untrue statement of any material fact and (iiiv) certifying as to the accuracy above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the representations made by Tenant Trustee shall be deemed to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any such representation is made 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 a specific date, the reports forwarded to the Holders of the Regular Certificates in which case such representation is accurate and complete in all material respects as respect of such specific dateDistribution Date and a statement setting forth the amounts actually distributed to the Class R Certificateholders on 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, and (y) 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 such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs requirements of the Existing Fee Mortgagee Code as from time to time in connection therewith force.
(e) The Servicer and the Trustee shall furnish to the Certificate Insurer, the Seller 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 copied or distributed except to the extent Landlord is required under by law or to the Existing Fee Mortgage Documents Rating Agencies. No Person entitled to pay receive copies of such costs, and (II) reimburse Landlord reports or diskettes or files or lists of Certificateholders shall use the information therein for the purpose of soliciting the customers of the Seller or for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared other 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Delta Funding Corp /De/)
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 Master Servicer and the Trustee by electronic means and to the Certificate Insurer via e-mail at rmgtapes@fsa.com, a computer file co▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇n level information necessary to permit the Trustee 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 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 Depositor, the Servicer, the Master 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 SPE Tenant: (a) Within ninety (90) days after Available Funds and each Class' Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 Excess Interest paid as principal and the allocation thereof among the classes 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 the 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 (or Manager) from (or to) any Gaming Authorities)Certificates;
(vi) the Servicing Fee, the Premium Amount and the Reimbursement Amount;
(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, the Required Overcollateralization Amount and the Subordination 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 number and Principal Balances of 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 included in Available Funds for such Distribution 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 reimbursements to the Servicer pursuant to Sections 3.03(ii) and (vi);
(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) [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; and
(xxv) the amount of the Insured Payments, if any, to be made on such Distribution Date. The Trustee shall make available such report to the Master Servicer, the Servicer, the Seller, the Depositor, the Certificate Insurer, the Certificateholders, the Rating Agencies, Bloomberg (at 499 Park Avenue, New York, New York ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇▇) ▇▇▇ ▇▇▇▇▇ Solutions (at ▇▇ ▇▇▇▇▇▇▇d Circle, Needham, Massach▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) ▇▇ ▇▇▇ Distribution ▇▇▇▇; ▇▇▇▇▇▇▇▇, 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 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. 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 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 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 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 such Distribution Date and a statement setting forth the Facility), a written notice 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any period of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), 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 SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which 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 Master Servicer, the Servicer and the Trustee shall furnish to the Certificate Insurer, 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; and
(xix) In connection with any Fee Mortgagee SecuritizationAgreement, Tenant shallsuch periodic, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except special or other reports or information, whether or not provided for herein, as shall be necessary, reasonable or appropriate with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information Certificateholder or otherwise with respect to the Propertypurposes 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 Master Servicer, 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 Master Servicer or 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;
(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, purpose except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information as set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Financial Asset Se Cp Soundview Hm Eq Ln as Bk Cer Se 2001-1)
Statements. Tenant Not later than 12:00 noon Chicago, Illinois time on the Business Day preceding each Determination Date, the Servicer shall furnish deliver to the Trustee and the Certificate Insurer a computer tape or cause written report containing the information set forth on EXHIBIT R as to each Mortgage Loan with respect to the related Due Period and such other information with respect to the Mortgage Loans in the aggregate as the Trustee shall reasonably require. Not later than 12:00 noon Chicago, Illinois time two Business Days preceding each Distribution Date, the Trustee shall deliver to the Depositors, any Paying Agent, the Servicer, the Certificate Insurer, ▇▇▇▇▇'▇ and S&P by telecopy, by request, a statement (the "REMITTANCE Report") prepared based on the information provided by the Servicer on EXHIBIT R containing the information set forth below with respect to the succeeding Distribution Date, with a hard copy thereof to be furnished delivered on the following to Landlordimmediately succeeding Business Day:
(i) As the Available Funds attributable to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year Mortgage Loan Group and containing statement of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each any portion of the first three Fiscal Quarters of each Fiscal Year (commencing with Available Funds that has been deposited in the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting Collection Account but may not be withdrawn therefrom pursuant to an order of a statement United States bankruptcy court of profit and losscompetent jurisdiction imposing a stay pursuant to ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code;
(ii) the Class A-1F Principal Balance, a balance sheetthe Class A-2F Principal Balance, and statement of cash flowsthe Class A-3F Principal Balance, plus a calculation of EBITDAR for such Fiscal Quarter the Class A-4F Principal Balance, the Class A-5F Principal Balance, the Class A-6F Principal Balance, the Class A-7F Principal Balance, the Class A-1A Principal Balance and the applicable prior year Fiscal QuarterPool Principal Balance with respect to each Mortgage Loan Group, as reported pursuant to SUBCLAUSE (XIII) below in each casethe Remittance Report provided for the immediately preceding Distribution Date, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP (subjector, in the case of quarterly financial statementsthe first Determination Date, the Original Class A-1F Principal Balance, the Original Class A-2F Principal Balance, the Original Class A-3F Principal Balance, the Original Class A-4F Principal Balance, the Original Class A-5F Principal Balance, the Original Class A-6F Principal Balance, the Original Class A-7F Principal Balance, the Original Class A-1A Principal Balance and the Original Pool Principal Balance with respect to each Mortgage Loan Group;
(iii) with respect to the Mortgage Pool and each Mortgage Loan Group, the number and the aggregate Principal Balances of all Mortgage Loans which were the subject of Principal Prepayments during the related Due Period;
(iv) with respect to the Mortgage Pool and each Mortgage Loan Group, the amount of all Curtailments which were received during the related Due Period;
(v) with respect to the Mortgage Pool and each Mortgage Loan Group, the aggregate amount of principal portions of all Monthly Payments received during the related Due Period;
(vi) with respect to the Mortgage Pool and each Mortgage Loan Group, the amount of interest received on the Mortgage Loans during the related Due Period;
(vii) with respect to the Mortgage Pool and each Mortgage Loan Group, the aggregate amount of the Advances made and recovered with respect to such Distribution Date;
(viii) with respect to the Mortgage Pool and each Mortgage Loan Group, the delinquency and foreclosure information set forth in the form attached hereto as EXHIBIT H and the amount of Mortgage Loan Losses during the related Due Period;
(ix) the Class A-1F Principal Balance, the Class A-2F Principal Balance, the Class A-3F Principal Balance, the Class A-4F Principal Balance, the Class A-5F Principal Balance, the Class A-6F Principal Balance, the Class A-7F Principal Balance, and the Class A-1A Principal Balance after giving effect to the distribution to be made on such Distribution Date;
(x) with respect to the Mortgage Pool and each Mortgage Loan Group, the weighted average maturity and the weighted average Mortgage Interest Rate of the Mortgage Loans in each Mortgage Loan Group as of the last day of the related Due Period;
(xi) the Servicing Fees paid and Servicing Fees accrued during the related Due Period;
(xii) the amount of all payments or reimbursements to the Servicer pursuant to SECTION 5.04 (II), (IV), (V), (VI) AND (VII) paid or to be paid since the prior Distribution Date (or in the case of the first Distribution Date, since the Closing Date);
(xiii) the Pool Principal Balance and aggregate Principal Balance for each Mortgage Loan Group as of the last day of the related Due Period;
(xiv) such other information as the Certificate Insurer and the Certificateholders may reasonably require;
(xv) the amounts which are reimbursable to the Servicer, the Representative or the Depositors, as appropriate, pursuant to SECTION 6.05;
(xvi) with respect to the Mortgage Pool and each Mortgage Loan Group, the number of Mortgage Loans outstanding at the beginning and at the end of the related Due Period;
(xvii) the aggregate interest accrued on the Mortgage Loans at their respective Mortgage Interest Rates for the related Due Period;
(xviii) the Overcollateralized Amount, the Overcollateralization Target Amount and any Overcollateralization Deficiency Amount for each Certificate Group for each Distribution Date, in each case after giving effect to distributions on such Distribution Date;
(xix) the aggregate Mortgage Loan Losses since the Cut-off Date as of the end of the related Due Period;
(xx) the Class A-1A LIBOR Interest Carryover, Fixed Rate Group 1 Interest Carryover and Fixed Rate Group 2 Interest Carryover with respect to such Distribution Date and, any such unpaid Class A-1A LIBOR Interest Carryover, Fixed Rate Group 1 Interest Carryover and Fixed Rate Group 2 Interest Carryover from prior Distribution Date(s), including interest accrued thereon; and
(xxi) the Pass-Through Rate for each Class of Class A Certificates for the related Accrual Period; and
(xxii) the aggregate amount of interest and/or principal (reported separately) to be distributed on each Class of Certificates on such Distribution Date. The Trustee shall forward such report to the Certificateholders on the Distribution Date, by telecopy, with a hard copy to follow (in the case of the Depository) or by first class mail. The Depositors and the Trustee may fully rely upon and shall have no liability with respect to information 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 and the Trustee may rely upon the telecopy. In the case of information furnished pursuant to SUBCLAUSE (XXII) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each of the Class A Certificates for each $1,000 original principal amount as of the Cut-off Date.
(a) Upon reasonable advance notice in writing, the Servicer will provide to the Trustee access to information and documentation regarding the Mortgage Loans sufficient to permit any Holder which is a savings and loan association, bank or insurance company to comply with applicable regulations of the FDIC or other regulatory authorities with respect to investment in the Certificates, as applicable.
(b) Not later than 10 days after each Distribution Date, the Servicer shall provide the Cumulative Loss Percentage to the Trustee and the Certificate Insurer as of the most recent Distribution Date. In addition, the Servicer shall furnish to the Trustee and to the Certificate Insurer, during the term of this Agreement, such periodic, special, or other reports or information not specifically provided for herein, as may be necessary, reasonable, or appropriate with respect to the Trustee or the Certificate Insurer, as the case may be, 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 Trustee or the Certificate Insurer may reasonably require; PROVIDED, that the Servicer shall be entitled to be reimbursed by the requesting party, for the fees and actual expenses associated with providing such reports, if such reports are not generally produced in the ordinary course of its business.
(c) Reports and computer tapes furnished by the Servicer pursuant to this Agreement shall be deemed confidential and of proprietary nature, and shall not be copied or distributed except in connection with the purposes and requirements of this Agreement; provided that the Certificate Insurer may copy or distribute such information (A) pursuant to a subpoena or order issued by a court of competent jurisdiction or by a judicial or administrative or legislative body or committee, (B) as may be required in any report, statement or testimony submitted to any Federal, state, municipal or other regulatory body having jurisdiction over the Certificate Insurer, (C) in order to comply with any law, ruling, order or regulation applicable to the Certificate Insurer, or (D) as may be required by any rating agency or reinsurer. No Person entitled to receive copies of such reports or tapes shall use the information therein for the purpose of soliciting the customers of the Originators or for any other purpose except as set forth in this Agreement.
(d) The Trustee shall promptly send to the Certificate Insurer and, upon request, to normal year-end audit adjustments and each Certificateholder in writing:
(i) notice of the absence appointment of footnotes)any Subservicer;
(ii) As notice of any transfer of any Account 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)different depository institution;
(Biii) quarterly unaudited financial statements, consisting a copy of each Officer's Certificate delivered pursuant to SECTION 7.04 and any notice received from the Servicer of a statement change in the fiscal year of profit and loss, the Servicer;
(iv) 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 copy of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018)letter delivered pursuant to SECTION 7.05; and
(Cv) notice of the receipt by the Trustee of any information regarding the Servicer's servicing activities pursuant to the last paragraph of SECTION 10.01(C). PROVIDED, that in each case the Trustee shall only be required to send such additional information notices and unaudited quarterly financial information concerning other items to such Persons to the Leased Property and Tenantextent that the Trustee has itself received the related information. The Depositors, 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 Servicer and the Exchange ActTrustee on behalf of Certificateholders (the "TRUST PARTIES") hereby authorize the Certificate Insurer to include the information contained in reports provided to the Certificate Insurer hereunder (the "INFORMATION") on The Bloomberg, an on-line computer based information network maintained by Bloomberg L.P. ("BLOOMBERG"), or in other electronic or print information services. The Trust Parties agree not to commence any actions or proceedings, or otherwise assert any claims, against the Certificate Insurer or its affiliates or any of the Certificate Insurer's or its affiliates' respective agents, representatives, directors, officers or employees (collectively, the "CERTIFICATE INSURER PARTIES"), arising out of, or related to or in connection with the dissemination and/or use of any Information by the Certificate Insurer, including, but not limited to, claims based on allegations of inaccurate, incomplete or erroneous transfer of information by the Certificate Insurer to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo Bloomberg or Landlord REIT during the Term of this Lease, otherwise (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’s Accountant than in connection with the Certificate Insurer's negligence or willful misconduct). The Trust Parties waive their rights to assert any such Financial Statements has been made claims against the Certificate Insurer Parties and fully and finally release the Certificate Insurer Parties from any and all such claims, demands, obligations, actions and liabilities (other than in accordance with GAAP, which shall be provided within ninety (90) days after the end of each Fiscal Year (commencing connection with the Fiscal Year ending December 31Certificate Insurer's negligence or willful misconduct). The Certificate Insurer makes no representations or warranties, 2017);
(B) quarterly unaudited financial statementsexpressed or implied, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 kind whatsoever with respect to the Facility with respect accuracy, adequacy, timeliness, completeness, merchantability or fitness for any particular purpose of any Information in any form or manner. The Certificate Insurer reserves the right at any time to withdraw or suspend the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect dissemination of the periodic determination Information by the Certificate Insurer. The authorizations, covenants and obligations 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 Trust Parties under this clause (y) (individually or collectively), would be reasonably expected to cause a material adverse effect on Tenant or in respect of the 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 (or Manager) 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which section shall be limited to balance sheets irrevocable and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or shall survive the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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 termination 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlAgreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Eqcc Home Equity Loan Trust 1999-3)
Statements. Tenant Each Alternate Currency Bank shall furnish or cause to be furnished the following to Landlord:
(i) As to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee RequirementAdministrative Agent not less frequently than monthly, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) from (or to) any Gaming Authorities);
(vi) Within ten (10) Business Days after the end of each calendar monthquarter, and at any other time at the reasonable request of the Administrative Agent, a schedule containing any additions to or retirements of any fixed assets constituting Leased Property, describing statement setting forth the outstanding Alternate Currency Loans made and repaid during the period since the last such assets in summary form, their location, historical cost, the amount of depreciation report under such Alternate Currency Addendum. Risk Participation. Immediately 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 automatically upon 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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 (iunder Sections 8.1(a), (iie) or (iii) of this parentheticalf), each Lender with a Tranche B Revolving Loan Commitment shall be deemed to have unconditionally and irrevocably purchased from the applicable Alternate Currency Bank, without recourse or warranty, an undivided interest in and participation in each Alternate Currency Loan ratably in an amount equal to such Lender's Pro Rata Tranche B Revolving Share of the amount of principal and accrued interest of such Loan, and immediately and automatically all Alternate Currency Loans shall be converted to and redenominated in Dollars equal to the extent reasonably requested by Dollar Amount of each 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L Alternate Currency Loan determined as of the date of the closing of such Fee Mortgage Securitizationconversion; provided, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 conversion shall occur other than at the end of an Interest Period, the applicable Borrower shall pay to the applicable Alternate Currency Bank, all losses and breakage costs related thereto in accordance with federal securities lawsSection 4.4. Each of the Lenders shall pay to the applicable Alternate Currency Bank not later than two (2) Business Days following a request for payment from such Alternate Currency Bank, including Regulation S-X (in Dollars, an amount equal to the undivided interest in and for participation in the Alternate Currency Loan purchased by such Lender pursuant to this Section 2.21(e). In the event that any prior periods required thereunderLender fails to make payment to the applicable Alternate Currency Bank of any amount due under this Section 2.21(e), the Administrative Agent shall be entitled to receive, retain and apply against such obligation the principal and interest otherwise payable to such Lender hereunder until the Administrative Agent receives from such Lender an amount sufficient to discharge such Lender's payment obligation as prescribed in this Section 2.21(e) together with interest thereon at the Federal Funds Effective Rate for each day during the period commencing on the date of demand by the applicable Alternate Currency Bank and ending on the date such obligation is required fully satisfied. The Administrative Agent will promptly remit all payments received as provided above to enable Landlthe applicable Alternate Currency Bank. In consideration of the risk participations prescribed in this Section 2.21(e), each Lender shall receive, from the accrued interest paid for periods prior to the conversion of any Alternate Currency Loan as described above by the applicable Borrower on each Alternate Currency Loan, a fee equal to such Lender's Pro Rata Tranche B Revolving Share of the Applicable Eurocurrency Margin component of the interest accrued on such Loan, as in effect from time to time during the period such interest accrued. Such portion of the interest paid by the applicable Borrower on Alternate Currency Loans to the applicable Alternate Currency Bank shall be paid as promptly as possible by such Alternate Currency Bank to the Administrative Agent, and the Administrative Agent shall as promptly as possible convert such amount into Dollars at the spot rate of exchange in accordance with its normal banking practices and apply such resulting amount ratably among the Lenders (including the Alternate Currency Banks) in proportion to their Pro Rata Tranche B Revolving Share.
Appears in 1 contract
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 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), annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing statement Class of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each caseNotes, to the extent required as an Additional Fee Mortgagee Requirementapplicable, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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)related Due Period and the Net 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 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)the Overcollateralization Deficiency, if any, the Principal 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(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 CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC 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 CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which Indenture Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) have been satisfied to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) substantially comparable information shall be prepared and furnished by the Indenture Trustee to Securityholders pursuant to any requirements of the Code as are in compliance with applicable federal securities lawsforce from time to time.
(c) On each Payment Date, including Regulation S-X (the Master Servicer 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 LandlIntex Solutions on a monthly basis.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Structured Asset Sec Corp Thornburg Mort Sec Trust 2003 6)
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 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), annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year and containing statement Class of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each caseNotes, to the extent required as an Additional Fee Mortgagee Requirementapplicable, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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)related Due Period and the Net 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 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)the Overcollateralization Deficiency, if any, the Principal 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 "www.ctslink.com." Assistance in using the website can be obtained by ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ster Servicer's customer service desk at (301) below;
(iii) As 815-6600. Parties that are unable to CEC:
(A) annual financial statements audited use the above distributio▇ ▇▇▇▇▇▇ ▇▇▇ ▇ntitled to have a paper copy mailed to them via first class mail by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC 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 CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which Indenture Trustee shall be limited deemed to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) have been satisfied to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) substantially comparable information shall be prepared and furnished by the Indenture Trustee to Securityholders pursuant to any requirements of the Code as are in compliance with applicable federal securities lawsforce from time to time.
(c) On each Payment Date, including Regulation S-X (the Master Servicer 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 LandlIntex Solutions on a monthly basis.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Thornburg Mortgage Inc)
Statements. Tenant 8.4.1 Sunovion shall furnish submit statements to Urovant on a monthly basis for any Initial Co-Promotion Period Expenses, Reimbursed Co-Promotion Expenses, and CPC Approved Expenses incurred by or cause on behalf of Sunovion, solely to the extent there are any such expenses during the preceding month. The foregoing statements shall be furnished used to determine the following Payout Threshold. Sunovion shall use reasonable efforts to Landlord:
provide an estimate to Urovant for any such Initial Co-Promotion Period Expenses, Reimbursed Co-Promotion Expenses, and CPC Approved Expenses by the third (i3rd) As to SPE Tenant: (a) Within ninety (90) days Business Day after the end of each Fiscal Year the applicable month. Urovant shall notify Sunovion in writing of any disputed statement within thirty (commencing with 30) days of receipt of such statement, and the Fiscal Year ending December 31Parties will resolve such Dispute promptly and in good faith. If such Dispute is not resolved within thirty (30) days of such Dispute notice, 2017), annual financial statements audited by an Accountant then either Party may refer such Dispute for resolution in accordance with GAAP covering Section 15.10.
8.4.2 During the Initial Co-Promotion Period, Urovant shall submit invoices to Sunovion on a monthly basis for any Urovant Expenses and CPC Approved Expenses incurred by or on behalf of Urovant, solely to the extent there are any such Fiscal Year expenses during the preceding month. Urovant shall use reasonable efforts to provide an estimate to Sunovion for any such Urovant Expenses and containing statement of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and CPC Approved Expenses by the third (b3rd) within sixty (60) days Business Day after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, month. Sunovion shall notify Urovant in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 writing 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 the 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 (or Manager) from (or to) any Gaming Authorities);
(vi) Within disputed statement within ten (10) Business Days after the end days of each calendar month, a schedule containing any additions to or retirements receipt 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 Dinvoice, and the Parties will resolve such additional customary Dispute promptly and reasonable financial information with respect to in good faith. If such fixed assets constituting Leased Property as Dispute 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;
not resolved within ten (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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (2510) days after the end of each calendar month the following items as they pertain to SPE Tenant: (A) a rent roll such Dispute notice, then either Party may refer such Dispute for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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 resolution in accordance with Section 22.3;
15.10. Sunovion shall pay Urovant the amount of each undisputed invoice within thirty (xvii30) Any notices or reporting required pursuant days after receipt thereof. The amounts reimbursed 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which Urovant from foregoing invoices shall be at used to determine the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlPayout Threshold.
Appears in 1 contract
Statements. Tenant shall furnish or cause to be furnished the following statements to Landlord:
(i) As to SPE Tenant: Within sixty-five (a) Within ninety (9065) days after the end of each Tenant Parent’s Fiscal Year Years (commencing with the Fiscal Year ending [December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b201 ]) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing or concurrently with the Fiscal Quarter ending March 31filing by ▇▇▇▇▇▇’s Parent of its annual report on Form 10-K with the SEC, 2018), SPE whichever is earlier: (x) Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP Parent’s Financial Statements; (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 (2y) a certificate, executed by the chief financial officer or treasurer of CEOC the Tenant’s Parent (a) certifying that no Tenant Event of Default default has occurred under this Master Lease or, if such a Tenant Event of Default default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all thereto and (b) setting forth the calculation of which shall be provided within ninety (90) days after the end financial covenants set forth in Section 23.3 hereof in reasonable detail as of each such Fiscal Year (commencing with the Fiscal Year ending [December 31, 2017201 ]);
; and (Bz) 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 report with respect thereto, and (B) certifying that such to Tenant’s Parent’s 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); and
(C) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenantfrom ▇▇▇▇▇▇’s Parent’s accountants, 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to going concern and scope of audit of CEC Tenant’s Parent and its Subsidiaries (excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date of such audit or any projected financial performance or covenant default in any Material Indebtedness or this Master Lease in such twelve month period) and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC Tenant’s Parent 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 examination by CEC▇▇▇▇▇▇’s Accountant Parent’s accountants in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety generally accepted auditing standards;
(90ii) Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of the Tenant’s Parent’s Fiscal Year (commencing with the Fiscal Year fiscal quarter ending December 31[ , 2017);
(B201 ]) or concurrently with the filing by ▇▇▇▇▇▇’s Parent of its quarterly unaudited financial statementsreport on Form 10-Q with the SEC, consisting of a statement of profit and losswhichever is earlier, a balance sheet, and statement copy of cash flows ▇▇▇▇▇▇’s Parent’s Financial Statements for CECsuch period, together with a certificate, executed by the chief financial officer or treasurer of CEC Tenant’s Parent (i) certifying that no default has occurred or, if such a default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth the calculation of the financial covenants set forth in Section 23.3 hereof in reasonable detail as of such quarter, to the extent one complete Test Period has been completed which has commenced following the date of this Master ▇▇▇▇▇ and (iii) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC Tenant’s Parent 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(Ciii) Promptly following ▇▇▇▇▇▇▇▇’s request from time to time, (a) five-year forecasts of Tenant’s income statement and balance sheet covering such quarterly and annual periods as may be reasonably requested by Landlord, and in a format consistent with Tenant Parent’s quarterly and annual financial statements filed with the SEC, and such additional financial information and projections as may be reasonably requested by Landlord in connection with syndications, private placements, or public offerings of GLP’s or Landlord’s debt securities or loans or equity or hybrid securities and (b) 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, Tenant as Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP may require for any its ongoing filings with or reports to (i) the SEC under both the Securities Act and the Securities Exchange ActAct of 1934, as amended, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP during the Term of this Master Lease, (ii) the Internal Revenue Service (including in respect of Landlord REITGLP’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo GLP or Landlord REIT its Subsidiaries subject to Section 23.1(c) below);
(iv) As soon as it is prepared and in no event later than sixty Within thirty-five (6035) days after the end of each Fiscal Yearcalendar month, a copy of Tenant’s income statement for such month and Tenant’s balance sheet as of Net Revenue the end of such month (which may be subject to quarterly and year-end adjustments and the absence of footnotes); provided, however, that with respect to each calendar quarter, Tenant shall provide such financial reports for the Facility with respect to final month thereof as soon as is reasonably practicable following the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect closing of the periodic determination of books for such month and in sufficient time so that Landlord or its Affiliate is able to include the Variable Rent hereunderoperational results for the entire quarter in its current Form 10-Q or Form 10-K (or supplemental report filed in connection therewith);
(v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity 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 the 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 (or Manager) from (or to) any Gaming Authorities)Property;
(vi) Within ten As soon as it is prepared and in no event later than sixty (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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (2560) days after the end of each calendar month the following items as they pertain to SPE Tenant: (A) Fiscal Year, a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room and entertainment operating metrics for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses capital and operating income (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant Facility for each that Fiscal Year, which shall ; and
(vii) Tenant further agrees to provide the financial and operational reports to be delivered to Landlord no later than fifty-five (55under this Master Lease in such electronic format(s) 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 reasonably be reasonably possible), such further detailed information reasonably available required by Landlord from time to Tenant with respect time in order 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, facilitate Landlord’s internal financial 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact reporting database and (ii) certifying as permit Landlord to the accuracy of the representations made by Tenant calculate any rent, fee or other payments due under Ground Leases. ▇▇▇▇▇▇ also agrees that Landlord shall have audit rights with respect to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) information to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) required to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection confirm Tenant’s compliance with the Existing Fee MortgageMaster Lease terms (including, Tenant shall (I) be responsible for the costs without limitation, calculation of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 thereunderNet Revenues), 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 Landl.
Appears in 1 contract
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 SPE Tenant: (a) Within ninety (90) days after Available Funds and each Class' Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 Required Overcollateralization Amount as of the Facility)close of business on the Distribution Date, after giving effect to distributions of principal on such Distribution Date;
(x) whether a written notice to Landlord regarding Cumulative Loss Event or a Delinquency Event has occurred and is continuing and the same, which notice shall include a detailed description calculation thereof;
(xi) the number and Principal Balances of 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 Tenant Event Monthly Advances and the Compensating Interest payment to be made on the Determination Date;
(xvi) the amount to be distributed to the Class BIO and Class R Certificateholders, respectively for the Distribution Date;
(xvii) the weighted average remaining term to maturity of Default 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 report to the FacilityServicer, Tenantthe Seller, CEOCthe Certificate Insurer, CEC the Certificateholders, the Rating Agencies, Bloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) and their Affiliates which shall be limited to balance sheets and income statements Intex Solutions (andat ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, without limitation▇▇▇▇▇▇▇, all information concerning Tenant▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, CEOC, CEC and any of their Affiliates, respectively, or Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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), (ii) or (iii) of this parenthetical), (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 extent reasonably requested 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 such Fee Mortgagee 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 satisfy make such distribution more convenient and/or more accessible to the market standards above parties and the Trustee shall provide timely and adequate notification to which all above parties regarding any such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies;changes.
(Bb) reviewWithin a reasonable period of time after the end of each calendar year, re-review andthe Trustee shall furnish to each Person who at any time during the calendar year was a Holder of a Regular Certificate, 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 if requested in writing 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, except with respect to the Existing Fee Mortgagesuch Person, 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 as is reasonably necessary to bona fide confidentiality restrictions; and
(C) with respect provide to the Existing Fee Mortgage, deliver such Person a certification to Landlord (i) certifying that statement containing the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause subclauses (Biii) does not at the time furnished contain any untrue statement of any material fact and (iiiv) certifying as to the accuracy above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the representations made by Tenant Trustee shall be deemed to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) have been satisfied to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) substantially comparable information 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 Landlsuch other information as the Trustee deems necessary or appropriate.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Delta Funding Corp /De/)
Statements. Tenant shall furnish or cause to be furnished the following statements to Landlord:
(i) As to SPE Tenant: Within sixty-five (a) Within ninety (9065) days after the end of each Tenant Parent’s Fiscal Year Years (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b2013) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing or concurrently with the Fiscal Quarter ending March 31filing by ▇▇▇▇▇▇’s Parent of its annual report on Form 10-K with the SEC, 2018), SPE whichever is earlier: (x) Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP Parent’s Financial Statements; (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 (2y) a certificate, executed by the chief financial officer or treasurer of CEOC the Tenant’s Parent (a) certifying that no Tenant Event of Default default has occurred under this Master Lease or, if such a Tenant Event of Default default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all thereto and (b) setting forth the calculation of which shall be provided within ninety (90) days after the end financial covenants set forth in Section 23.3 hereof in reasonable detail as of each such Fiscal Year (commencing with the Fiscal Year ending December 31, 20172014);
; and (Bz) 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 report with respect thereto, and (B) certifying that such to Tenant’s Parent’s 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); and
(C) such additional information and unaudited quarterly financial information concerning the Leased Property and from Tenant’s Parent’s accountants, 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to going concern and scope of audit of CEC Tenant’s Parent and its Subsidiaries (excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date of such audit or any projected financial performance or covenant default in any Material Indebtedness or this Master Lease in such twelve month period) and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC Tenant’s Parent 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 examination by CEC▇▇▇▇▇▇’s Accountant Parent’s accountants in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety generally accepted auditing standards;
(90ii) Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of the Tenant’s Parent’s Fiscal Year (commencing with the Fiscal Year fiscal quarter ending December March 31, 2017);
(B2014) or concurrently with the filing by ▇▇▇▇▇▇’s Parent of its quarterly unaudited financial statementsreport on Form 10-Q with the SEC, consisting of a statement of profit and losswhichever is earlier, a balance sheet, and statement copy of cash flows ▇▇▇▇▇▇’s Parent’s Financial Statements for CECsuch period, together with a certificate, executed by the chief financial officer or treasurer of CEC Tenant’s Parent (i) certifying that no default has occurred or, if such a default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth the calculation of the financial covenants set forth in Section 23.3 hereof in reasonable detail as of such quarter, to the extent one complete Test Period has been completed which has commenced following the date of this Master Lease and (iii) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC Tenant’s Parent 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(Ciii) Promptly following ▇▇▇▇▇▇▇▇’s request from time to time, (a) five-year forecasts of Tenant’s income statement and balance sheet covering such quarterly and ACTIVE/119768607.18 annual periods as may be reasonably requested by Landlord, and in a format consistent with Tenant Parent’s quarterly and annual financial statements filed with the SEC, and such additional financial information and projections as may be reasonably requested by Landlord in connection with syndications, private placements, or public offerings of GLP’s or Landlord’s debt securities or loans or equity or hybrid securities and (b) 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, Tenant as Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP may require for any its ongoing filings with or reports to (i) the SEC under both the Securities Act and the Securities Exchange ActAct of 1934, as amended, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP during the Term of this Master Lease, (ii) the Internal Revenue Service (including in respect of Landlord REITGLP’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo GLP or Landlord REIT its Subsidiaries subject to Section 23.1(c) below);
(iv) As soon as it is prepared and in no event later than sixty Within thirty-five (6035) days after the end of each Fiscal Yearcalendar month, a copy of Tenant’s income statement for such month and Tenant’s balance sheet as of Net Revenue the end of such month (which may be subject to quarterly and year-end adjustments and the absence of footnotes); provided, however, that with respect to each calendar quarter, Tenant shall provide such financial reports for the Facility with respect to final month thereof as soon as is reasonably practicable following the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect closing of the periodic determination of books for such month and in sufficient time so that Landlord or its Affiliate is able to include the Variable Rent hereunderoperational results for the entire quarter in its current Form 10-Q or Form 10-K (or supplemental report filed in connection therewith);
(v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity 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 the 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 (or Manager) from (or to) any Gaming Authorities)Property;
(vi) Within ten As soon as it is prepared and in no event later than sixty (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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (2560) days after the end of each calendar month the following items as they pertain to SPE Tenant: (A) Fiscal Year, a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room and entertainment operating metrics for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses capital and operating income (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant Facility for each that Fiscal Year, which shall ; and
(vii) Tenant further agrees to provide the financial and operational reports to be delivered to Landlord no later than fifty-five (55under this Master Lease in such electronic format(s) 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 reasonably be reasonably possible), such further detailed information reasonably available required by Landlord from time to Tenant with respect time in order 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, Tenant or its Affiliates (excluding (i) any material non-public information, (ii) any Competitively Sensitive Information, facilitate ▇▇▇▇▇▇▇▇’s internal financial 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact reporting database and (ii) certifying as permit Landlord to the accuracy of the representations made by Tenant calculate any rent, fee or other payments due under Ground Leases. ▇▇▇▇▇▇ also agrees that Landlord shall have audit rights with respect to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) information to the extent that any such representation is made as required to confirm Tenant’s compliance with the Master Lease terms (including, without limitation, calculation of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”Net Revenues). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlACTIVE/119768607.18
Appears in 1 contract
Statements. Tenant shall furnish or cause to be furnished the following statements to Landlord:
(i) As to SPE Tenant: Within sixty-five (a) Within ninety (9065) days after the end of each Tenant Parent’s Fiscal Year Years (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b2023) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing or concurrently with the Fiscal Quarter ending March 31filing by ▇▇▇▇▇▇’s Parent of its annual report on Form 10-K with the SEC, 2018), SPE whichever is earlier: (x) Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis in accordance with GAAP Parent’s Financial Statements; (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 (2y) a certificate, executed by the chief financial officer or treasurer of CEOC the Tenant’s Parent (a) certifying that no Tenant Event of Default default has occurred under this Master Lease or, if such a Tenant Event of Default default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, all thereto and (b) setting forth the calculation of which shall be provided within ninety (90) days after the end financial covenants set forth in Section 23.3 hereof in reasonable detail as of each such Fiscal Year (commencing with the Fiscal Year ending December 31, 20172023);
; and (Bz) 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 report with respect thereto, and (B) certifying that such to Tenant’s Parent’s 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); and
(C) such additional information and unaudited quarterly financial information concerning the Leased Property and from Tenant’s Parent’s accountants, 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to going concern and scope of audit of CEC Tenant’s Parent and its Subsidiaries (excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date of such audit or any projected financial performance or covenant default in any Material Indebtedness or this Master Lease in such twelve month period) and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC Tenant’s Parent 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 examination by CEC▇▇▇▇▇▇’s Accountant Parent’s accountants in connection with such Financial Statements has been made in accordance with GAAP, which shall be provided within ninety generally accepted auditing standards;
(90ii) Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of the Tenant’s Parent’s Fiscal Year (commencing with the Fiscal Year fiscal quarter ending December March 31, 2017);
(B2023) or concurrently with the filing by ▇▇▇▇▇▇’s Parent of its quarterly unaudited financial statementsreport on Form 10-Q with the SEC, consisting of a statement of profit and losswhichever is earlier, a balance sheet, and statement copy of cash flows ▇▇▇▇▇▇’s Parent’s Financial Statements for CECsuch period, together with a certificate, executed by the chief financial officer or treasurer of CEC Tenant’s Parent (i) certifying that no default has occurred or, if such a default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth the calculation of the financial covenants set forth in Section 23.3 hereof in reasonable detail as of such quarter, to the extent one complete Test Period has been completed which has commenced following the date of this Master Lease and (iii) certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC Tenant’s Parent 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(Ciii) Promptly following ▇▇▇▇▇▇▇▇’s request from time to time, (a) five-year forecasts of Tenant’s income statement and balance sheet covering such quarterly and annual periods as may be reasonably requested by Landlord, and in a format consistent with Tenant Parent’s quarterly and annual financial statements filed with the SEC, and such additional financial information and projections as may be reasonably requested by Landlord in connection with syndications, private placements, or public offerings of GLP’s or Landlord’s debt securities or loans or equity or hybrid securities and (b) 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, Tenant as Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP may require for any its ongoing filings with or reports to (i) the SEC under both the Securities Act and the Securities Exchange ActAct of 1934, as amended, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord, PropCo 1, PropCo Landlord or Landlord REIT GLP during the Term of this Master Lease, (ii) the Internal Revenue Service (including in respect of Landlord REITGLP’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo GLP or Landlord REIT its Subsidiaries subject to Section 23.1(c) below);
(iv) As soon as it is prepared and in no event later than sixty Within thirty-five (6035) days after the end of each Fiscal Yearcalendar month, a copy of Tenant’s income statement for such month and Tenant’s balance sheet as of Net Revenue the end of such month (which may be subject to quarterly and year-end adjustments and the absence of footnotes); provided, however, that with respect to each calendar quarter, Tenant shall provide such financial reports for the Facility with respect to final month thereof as soon as is reasonably practicable following the prior Lease Year (subject to the additional requirements as provided in Section 3.2 hereof in respect closing of the periodic determination of books for such month and in sufficient time so that Landlord or its Affiliate is able to include the Variable Rent hereunderoperational results for the entire quarter in its current Form 10-Q or Form 10-K (or supplemental report filed in connection therewith);
(v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity 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 the Facility (Property; 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 (or Manager) from (or to) any Gaming Authorities);
(vi) Within ten As soon as it is prepared and in no event later than sixty (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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause to be furnished, to Landlord on or before twenty-five (2560) days after the end of each calendar month the following items as they pertain to SPE Tenant: (A) Fiscal Year, a rent roll for the subject month, an occupancy report for the subject month, including an average daily rate and revenue per available room and entertainment operating metrics for the subject month; (B) monthly and year-to-date operating statements prepared for each calendar month, noting gross revenue, net revenue, operating expenses capital and operating income (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the Facility;
(xiii) Operating budget for each SPE Tenant Facility for each that Fiscal Year, which shall
(vii) Tenant further agrees to provide the financial and operational reports to be delivered to Landlord no later than fifty-five under this Master Lease in such electronic format(s) as may reasonably be required by Landlord from time to time in order to (55i) days following the commencement of the Fiscal Year facilitate ▇▇▇▇▇▇▇▇’s internal financial and reporting database and (ii) permit Landlord to which such operating budget relates;calculate any rent, fee or other payments due under Ground Leases.
(xivviii) Within five (5) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information reasonably available to Tenant ▇▇▇▇▇▇ also agrees that Landlord shall have audit rights 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 any such information provided 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgageextent such audit is reasonably required to confirm Tenant’s compliance with the Master Lease terms (including, which shall be at without limitation, the sole cost and expense calculation of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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), Net Revenues 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;
(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 Mortgageconfirm Tenant’s compliance with Section 23.3(a) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”Master Lease). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landl.
Appears in 1 contract
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 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 SPE Tenant: (a) Within ninety (90) days after Available Funds and each Class' Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 Required Overcollateralization Amount as of the Facility)close of business on the Distribution Date, after giving effect to distributions of principal on such Distribution Date;
(x) whether a written notice to Landlord regarding Cumulative Loss Event or a Delinquency Event has occurred and is continuing and the same, which notice shall include a detailed description calculation thereof;
(xi) the number and Principal Balances of 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 Tenant Event Monthly Advances and the Compensating Interest payment to be made on the Determination Date;
(xvi) the amount to be distributed to the Class BIO and Class R Certificateholders, respectively for the Distribution Date;
(xvii) the weighted average remaining term to maturity of Default 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 report to the FacilityServicer, Tenantthe Seller, CEOCthe Certificate Insurer, CEC the Certificateholders, the Rating Agencies, Bloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) and their Affiliates which shall be limited to balance sheets and income statements Intex Solutions (andat ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, without limitation▇▇▇▇▇▇▇, all information concerning Tenant▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, CEOC, CEC and any of their Affiliates, respectively, or Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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. 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 (iii) of this parenthetical), as is reasonably necessary to the extent reasonably requested by provide to 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;
(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 Person 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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that statement containing the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause subclauses (Biii) does not at the time furnished contain any untrue statement of any material fact and (iiiv) certifying as to the accuracy above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the representations made by Tenant Trustee shall be deemed to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) have been satisfied to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) substantially comparable information 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 Landlsuch other information as the Trustee deems necessary or appropriate.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Delta Funding Corp /De/)
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 SPE Tenant: (a) Within ninety (90) days after Available Funds and each Class' Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 Required Overcollateralization Amount as of the Facility)close of business on the Distribution Date, after giving effect to distributions of principal on such Distribution Date;
(x) whether a written notice to Landlord regarding Cumulative Loss Event or a Delinquency Event has occurred and is continuing and the same, which notice shall include a detailed description calculation thereof;
(xi) the number and Principal Balances of 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 Tenant Event 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 Default 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 report to the FacilityServicer, Tenantthe Seller, CEOCthe Certificate Insurer, CEC the Certificateholders, the Rating Agencies, Bloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) and their Affiliates which shall be limited to balance sheets and income statements Intex Solutions (andat ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, without limitation▇▇▇▇▇▇▇, all information concerning Tenant▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, CEOC, CEC and any of their Affiliates, respectively, or Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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), (ii) or (iii) of this parenthetical), (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 extent reasonably requested 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 such Fee Mortgagee 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 satisfy make such distribution more convenient and/or more accessible to the market standards above parties and the Trustee shall provide timely and adequate notification to which all above parties regarding any such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies;changes.
(Bb) reviewWithin a reasonable period of time after the end of each calendar year, re-review andthe Trustee shall furnish to each Person who at any time during the calendar year was a Holder of a Regular Certificate, 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 if requested in writing 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, except with respect to the Existing Fee Mortgagesuch Person, 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 as is reasonably necessary to bona fide confidentiality restrictions; and
(C) with respect provide to the Existing Fee Mortgage, deliver such Person a certification to Landlord (i) certifying that statement containing the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause subclauses (Biii) does not at the time furnished contain any untrue statement of any material fact and (iiiv) certifying as to the accuracy above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the representations made by Tenant Trustee shall be deemed to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) have been satisfied to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) substantially comparable information 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 Landlsuch other information as the Trustee deems necessary or appropriate.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Delta Funding Home Equity Loan Trust 2000-4)
Statements. Tenant (a) Not later than 12:00 noon, New York City time, on each Determination Date, the Servicer shall furnish deliver to the Trustee a computer tape (or cause such other report in a form and format mutually agreeable to the Servicer and the Trustee) containing the information set forth in Exhibit E hereto as to each Mortgage Loan as of the end of the preceding Due Period and such other information as the Trustee shall reasonably require. On the Business Day preceding the Distribution Date, the Trustee shall deliver to the Servicer, the Depositor and to the Certificate Insurer, by telecopy, with a hard copy thereof to be furnished delivered on such Distribution Date, a statement (the following "Trustee's Remittance Report") (based solely on the information contained on the computer tape) containing the information set forth below with respect to Landlordsuch Distribution Date:
(i) As to SPE Tenant: The Available Funds and each Class' Certificate Rate for the related Distribution Date;
(aii) Within ninety (90) days after The Class A-1 Principal Balance, the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each Notional Principal Balance of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respectsClass A-2 Certificates, the financial position and results of operations of SPE Tenant and its Subsidiaries on a consolidated basis Pool Principal Balance as reported in accordance with GAAP (subjectthe prior Trustee's Remittance Report or, in the case of quarterly financial statementsthe first Determination Date, to normal year-end audit adjustments the Original Class A-1 Certificate Principal Balance 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);
(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 yearCut-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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowOff Date Pool Principal Balance;
(iii) As The aggregate amount of collections received on the Mortgage Loans on or prior to CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 Determination Date in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning preceding Due Period, separately stating the amounts received in respect of Section 856(a) of the Code)) principal 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) belowinterest;
(iv) As soon as it is prepared The number and in no event later than sixty (60) days after Principal Balances of all Mortgage Loans that were the end subject of each Fiscal Year, a statement of Net Revenue with respect to Principal Prepayments during the Facility with respect to the prior Lease 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 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 The 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 the 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 (or Manager) from (or to) any Gaming Authorities)Due Period;
(vi) Within ten (10) Business Days after The principal portion of all Monthly Payments received during 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 DateDue Period;
(vii) Within three (3) Business Days The interest portion of obtaining actual knowledge of all Monthly Payments received on the occurrence of a Tenant Event of Default (or of Mortgage Loans during 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 the 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)Due Period;
(viii) Such additional customary and reasonable financial information related The amount required to be paid by the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements Seller (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the Facility or the business of Tenant conducted thereat required reported separately) pursuant to the Fee Mortgage DocumentsSections 2.02, 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, in connection with the Existing Fee Mortgage, Tenant will furnish, 2.04 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, in the form attached hereto as Exhibit I2.06;
(ix) The compliance certificates, as amount of the Monthly Advances and when required pursuant the Compensating Interest payment to Section 4.3be made with respect to such Distribution Date;
(x) The Annual Capital Budget as the Certificate Rate on the Variable Rate Certificates and when required in Section 10.5the Certificate Index;
(xi) The monthly revenue Class A-1 Principal Distribution and Capital Expenditure reporting required pursuant the Class Interest Distribution for the related Distribution Date to Section 10.5(b)be distributed on each Class of Class A Certificates;
(xii) Together with The amount, if any, of the monthly reporting required pursuant Outstanding Class Interest Carryover Shortfall and Class A-1 Principal Shortfall Amount after giving effect to the preceding clause (xi), an updated rent roll and a summary of all leasing activity then taking place at distributions on the Facilityrelated Distribution Date;
(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 The amount of the Fiscal Year Insured Payments, if any, to which such operating budget relatesbe made on the related Distribution Date;
(xiv) Within five (5) Business Days after request (or as soon thereafter as may The amount to be reasonably possible), such further detailed information reasonably available distributed to Tenant with respect to each SPE Tenant as may be reasonably requested by Landlordthe Class R Certificateholders for the related Distribution Date;
(xv) The quarterly reporting in respect of Bookings required pursuant Class A-1 Principal Balance after giving effect to Section 22.7 of this Lease;
the distribution to be made on the related Distribution Date; (xvi) The reporting/copies of Subleases made by Tenant in accordance with Section 22.3;
(xvii) Any notices or reporting required pursuant weighted average remaining term 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy maturity of the representations made by Tenant to Landlord under Section 8.2 Mortgage Loans and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlweighted average Loan Rate;
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities Inc)
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 SPE Tenant: (a) Within ninety (90) days after the end of Available Funds for each Fiscal Year (commencing with Certificate Group and each Class' Certificate Rate for the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 Required Overcollateralization Amount as of the Facility)close of business on the Distribution Date, after giving effect to distributions of principal on such Distribution Date;
(x) whether a written notice to Landlord regarding Cumulative Loss Event or a Delinquency Event has occurred and is continuing and the samecalculation thereof;
(xi) the number and Principal Balances of 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, which notice shall include a detailed description the amount of the Tenant Event 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 Default 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 report to the FacilityServicer, Tenantthe Seller, CEOCthe Certificate Insurer, CEC the Certificateholders, the Rating Agencies, Bloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) and their Affiliates which shall be limited to balance sheets and income statements Intex Solutions (andat ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, without limitation▇▇▇▇▇▇▇, all information concerning Tenant▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, CEOC, CEC and any of their Affiliates, respectively, or Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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), (ii) or (iii) of this parenthetical), (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 extent reasonably requested 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 such Fee Mortgagee 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 satisfy make such distribution more convenient and/or more accessible to the market standards above parties and the Trustee shall provide timely and adequate notification to which all above parties regarding any such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies;changes.
(Bb) reviewWithin a reasonable period of time after the end of each calendar year, re-review andthe Trustee shall furnish to each Person who at any time during the calendar year was a Holder of a Regular Certificate, 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 if requested in writing 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, except with respect to the Existing Fee Mortgagesuch Person, 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 as is reasonably necessary to bona fide confidentiality restrictions; and
(C) with respect provide to the Existing Fee Mortgage, deliver such Person a certification to Landlord (i) certifying that statement containing the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause subclauses (Biii) does not at the time furnished contain any untrue statement of any material fact and (iiiv) certifying as to the accuracy above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the representations made by Tenant Trustee shall be deemed to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any such representation is made 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 a specific date, the reports forwarded to the Holders of the Regular Certificates in which case such representation is accurate and complete in all material respects as respect of such specific dateDistribution Date and a statement setting forth the amounts actually distributed to the Class R Certificateholders on 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, and (y) 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 such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs requirements of the Existing Fee Mortgagee Code as from time to time in connection therewith 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 copied or distributed except to the extent Landlord is required under by law or to the Existing Fee Mortgage Documents Rating Agencies. No Person entitled to pay receive copies of such costs, and (II) reimburse Landlord reports or diskettes or files or lists of Certificateholders shall use the information therein for the purpose of soliciting the customers of the Seller or for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared other 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Delta Funding Corp /De/)
Statements. Tenant shall furnish The Credit Union will send all statements, notices and any other information pertaining to an account to the address of the first named member on the account. Account owner agrees to advise the Credit Union in writing of any changes of address. You should carefully examine the statement when you receive it. If you feel that there is an error on the statement, or cause that someone has made an unauthorized debit to your account, you must notify the Credit Union immediately. The statement is considered correct unless you notify the Credit Union promptly in writing after any error is discovered. Moreover, because you are in the best position to discover and report any unauthorized debit, you agree that the Credit Union will not be furnished the following to Landlord:
(i) As to SPE Tenant: liable for paying such liens if (a) Within ninety you do not notify any unauthorized debit to the Credit Union within thirty (9030) calendar days after of the end mailing date of each Fiscal Year the earliest statement containing the unauthorized debit, or b) the unauthorized items were drawn in such a way that (commencing with the Fiscal Year ending December 31, 2017as by a facsimile machine or otherwise), annual financial statements audited lack of authority could not be detected by an Accountant in accordance with GAAP covering such Fiscal Year the Credit Union. DEPOSITS: All deposits made to the Credit Union are subject to Regulation CC and containing statement of profit and lossthe Expedited Funds Availability Act. The Credit Union may refuse any deposit, a balance sheetlimit the amount that may be deposited, and statement return all or any part of cash flows any deposit without notice. If deposits are made to an account(s) with other than cash, such items are subject to collection. If funds are made available for SPE Tenantuse prior to collection of such items, plus a calculation you agree to pay or otherwise reimburse the Credit Union for any funds that are not collected. FEES AND CHARGES: A list of EBITDAR Credit Union fees for such Fiscal Year; certain services will be provided to you. These charges are subject to change at any time. Notification of any charges will be provided at least 30 days before any change is effective. Other charges and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, fees may be instituted subject to the extent required as an Additional limitation set forth above. Refer to the Credit Union’s Service Fee Mortgagee RequirementSchedule for up-to-date information. If the Credit Union incurs any expenses, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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, including but not limited to 10-Q Quarterly Reportsadministrative costs and reasonable attorney fees in responding to an attachment, 10-K Annual Reports and registration statements garnishment or other levy, that is not otherwise reimbursed, it may charge such expense to your account without prior notice to you, EFFECT OF INSTRUCTIONS: Instructions may be filed given orally, by Landlord, PropCo 1, PropCo telephone or Landlord REIT during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REITperson, in each case writing; through an ATM, point of clause (i)sale terminal, (ii) and (iii)computer terminal, subject to Section 23.1(c) below;
(iii) As to CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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 method authorized by Landlord under the Credit Union. Each instruction for a Fee Mortgagewithdrawal or transfer of funds from an account of account owner(s) identified by Landlord to be reviewed by Tenant, which portions shall be limited to any portions relating solely to Tenant Information; provided that, except with respect to will have the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy legal effect of the representations made by Tenant account owner(s) authorization, written draft, or order. Each instruction for a deposit or other transfer of funds to Landlord under Section 8.2 and Exhibit L an account will have the legal effect of authorizing the Credit Union as of account owner(s) agent for collection, until the date of Credit Union receives final payment in the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made same manner as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landlchecks
Appears in 1 contract
Sources: Membership Agreement
Statements. Tenant Not later than 12:00 noon Chicago, Illinois time on the Business Day preceding each Determination Date, the Servicer shall furnish deliver to the Trustee and the Certificate Insurer a computer tape or cause written report containing the information set forth on Exhibit R as to each Mortgage Loan with respect to the related Due Period and such other information with respect to the Mortgage Loans in the aggregate as the Trustee shall reasonably require. Not later than 12:00 noon Chicago, Illinois time two Business Days preceding each Payment Date, the Trustee shall deliver to the Depositors, any Paying Agent, the Servicer, the Certificate Insurer, Moody's and S&P by telecopy, by request, a statement (the "Remittance Report") containing the information set forth below with respect to the succeeding Payment Date, with a hard copy thereof to be furnished delivered on the following to Landlordimmediately succeeding Business Day:
(i) As the Available Payment Amount attributable to SPE Tenant: (a) Within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an Accountant in accordance with GAAP covering such Fiscal Year Mortgage Loan Group and containing statement of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each any portion of the first three Fiscal Quarters of each Fiscal Year (commencing with Available Payment Amount that has been deposited in the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting Collection Account but may not be withdrawn therefrom pursuant to an order of a statement United States bankruptcy court of profit and losscompetent jurisdiction imposing a stay pursuant to ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code;
(ii) the Class A-1F Principal Balance, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter the Class A-1A Principal Balance and the applicable prior year Fiscal QuarterPool Principal Balance with respect to each Mortgage Loan Group, as reported in each casethe Remittance Report provided pursuant to subclause (xiii) below for the immediately preceding Payment Date, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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 Original Class A-1F Principal Balance, the Original Class A-1A Principal Balance 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 Principal 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowMortgage Loan Group;
(iii) As with respect to CEC:
(A) annual financial statements audited by CEC’s Accountant in accordance with GAAP covering such Fiscal Year the Mortgage Pool and containing statement of profit and loss, a balance sheet, and statement of cash flows for CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respectsMortgage Loan Group, the financial position number and results Principal Balances of operations all Mortgage Loans which were the subject of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 Principal Prepayments during the Term of this Lease, (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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) belowrelated Due Period;
(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 the Facility with respect to Mortgage Pool and each Mortgage Loan Group, the prior Lease Year (subject to amount of all Curtailments which were received 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 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 Tenantthe Mortgage Pool and each Mortgage Loan Group, the result aggregate 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 principal portion of all or any portion of Monthly Payments 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 the 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 (or Manager) from (or to) any Gaming Authorities)related Due Period;
(vi) Within ten (10) Business Days after with respect to the end of Mortgage Pool and 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 costMortgage Loan Group, the amount of depreciation interest received on the Mortgage Loans during the related Due Period;
(vii) with respect to the Mortgage Pool and any improvements theretoeach Mortgage Loan Group, substantially the aggregate amount of the Advances made and recovered with respect to such Payment Date;
(viii) with respect to the Mortgage Pool and each Mortgage Loan Group, the delinquency and foreclosure information set forth in the form attached hereto as Exhibit DH and the amount of Mortgage Loan Losses during the related Due Period;
(ix) the Class A-1F Principal Balance and the Class A-1A Principal Balance after giving effect to the distribution to be made on such Payment Date;
(x) with respect to the Mortgage Pool and each Mortgage Loan Group, the weighted average maturity and the weighted average Mortgage Interest Rate of the Mortgage Loans in each Mortgage Loan Group as of the last day of the related Due Period;
(xi) the Servicing Fees paid and Servicing Fees accrued during the related Due Period;
(xii) the amount of all payments or reimbursements to the Servicer pursuant to Section 5.04 (ii), (iv), (v), (vi) and (vii) paid or to be paid since the prior Payment Date (or in the case of the first Payment Date, since the Closing Date);
(xiii) the Pool Principal Balance and aggregate Principal Balance for each Mortgage Loan Group as of the last day of the related Due Period;
(xiv) such other information as the Certificate Insurer and the Certificateholders may reasonably require;
(xv) the amounts which are reimbursable to the Servicer, the Representative or the Depositors, as appropriate, pursuant to Section 6.05;
(xvi) with respect to the Mortgage Pool and each Mortgage Loan Group, the number of Mortgage Loans outstanding at the beginning and at the end of the related Due Period;
(xvii) the aggregate interest accrued on the Mortgage Loans at their respective Mortgage Interest Rates for the related Due Period;
(xviii) the Subordinated Amount, the amount on deposit in the Spread Account, the Cumulative Excess Spread Receipts, in each case after giving effect to any payments or withdrawals on such Payment Date, and such additional customary with respect to the Mortgage Pool and reasonable financial information each Mortgage Loan Group, the Excess Spread 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 Payment Date;
(viixix) Within three (3) Business Days of obtaining actual knowledge the aggregate Mortgage Loan Losses since the Cut-off Date as of the occurrence of a Tenant Event of Default (or end of the occurrence of related Due Period;
(xx) the LIBOR Interest Carryover with respect to such Payment Date and, any facts or circumstances whichsuch unpaid LIBOR Interest Carryover from prior Payment Date(s), including interest accrued thereon;
(xxi) the Yield Supplement Carryover with respect to such Payment Date and, any such unpaid Yield Supplement Carryover from prior Payment Date(s), including interest accrued thereon; and
(xxii) any amounts deposited into and released from the giving of notice or Yield Supplement Sub-Account. All amounts received by Class A-1F Certificateholders from 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 Yield Supplement Sub-Account in respect of Yield Supplement Amounts. The Trustee shall forward such report to the Facility)Certificateholders on the Payment Date, by telecopy, with a written hard copy to follow (in the case of the Depository) or by first class mail. The Depositors and the Trustee may fully rely upon and shall have no liability with respect to information 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 and the Trustee may rely upon the telecopy. In the case of information furnished pursuant to subclauses (ii) and (ix) above, the amounts shall be expressed in a separate section of the report as a dollar amount for each of the Class A Certificates for each $1,000 original principal amount as of the Cut-off Date.
(a) Upon reasonable advance notice in writing, the Servicer will provide to Landlord the Trustee access to information and documentation regarding the sameMortgage Loans sufficient to permit any Holder which is a savings and loan association, which notice shall include a detailed description bank or insurance company to comply with applicable regulations of the Tenant Event of Default FDIC or other regulatory authorities with respect to investment in the Certificates, as applicable.
(or such facts or circumstancesb) Not later than 10 days after each Payment Date, the Servicer shall provide the Loss Coverage Ratio to the Trustee and the actions Tenant has taken Certificate Insurer as of the most recent Payment Date. In addition, the Servicer shall furnish to the Trustee and to the Certificate Insurer, during the term of this Agreement, such periodic, special, or other reports or information not specifically provided for herein, as may be necessary, reasonable, or appropriate with respect to the Trustee or the Certificate Insurer, as the case may be, 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 Trustee or the Certificate Insurer may reasonably require; provided, that the Servicer shall takebe entitled to be reimbursed by the requesting party, for the fees and actual expenses associated with providing such reports, if any, to remedy such Tenant Event reports are not generally produced in the ordinary course of Default (or such facts or circumstances);its business.
(viiic) Such additional customary Reports and reasonable financial computer tapes furnished by the Servicer pursuant to this Agreement shall be deemed confidential and of proprietary nature, and shall not be copied or distributed except in connection with the purposes and requirements of this Agreement; provided that the Certificate Insurer may copy or distribute such information related (A) pursuant to a subpoena or order issued by a court of competent jurisdiction or by a judicial or administrative or legislative body or committee, (B) as may be required in any report, statement or testimony submitted to any Federal, state, municipal or other regulatory body having jurisdiction over the Certificate Insurer, (C) in order to comply with any law, ruling, order or regulation applicable to the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectivelyCertificate Insurer, or the Facility or the business of Tenant conducted thereat required pursuant to the Fee Mortgage Documents, within the applicable timeframes required thereunder), in each case (D) as may be required by any Fee Mortgagee rating agency or reinsurer. No Person entitled to receive copies of such reports or tapes shall use the information therein for the purpose of soliciting the customers of the Originators or for any other purpose except as an Additional Fee Mortgagee Requirement hereunder set forth in this Agreement.
(d) The Trustee shall promptly send to the Certificate Insurer and, upon request, to each Certificateholder in writing:
(i) notice of any reduction in the Specified Spread Account Requirement;
(ii) notice of any reduction of the percentages set forth in the definition of "Monthly Excess Spread Amount";
(iii) notice of the appointment of any Subservicer;
(iv) notice of any transfer of any Account to a different depository institution;
(v) a copy of each Officer's Certificate delivered pursuant to Section 7.04 and any notice received from the Servicer of a change in the fiscal year of the Servicer;
(vi) a copy of each letter delivered pursuant to Section 7.05; and
(vii) notice of the receipt by the Trustee of any information regarding the Servicer's servicing activities pursuant to the last paragraph of Section 10.01(c); provided, that in each case the Trustee shall only be required to send such notices and other items to such Persons to the extent required that the Trustee has itself received the related information. The Depositors, the Servicer and the Trustee on behalf of Certificateholders (the "Trust Parties") hereby authorize the Certificate Insurer to include the information contained in reports provided to the Certificate Insurer hereunder (the "Information") on The Bloomberg, an on-line computer based information network maintained by Section 31.3Bloomberg L.P. ("Bloomberg"), or in other electronic or print information services. Without limitation The Trust Parties agree not to commence any actions or proceedings, or otherwise assert any claims, against the Certificate Insurer or its affiliates or any of the foregoingCertificate Insurer's or its affiliates' respective agents, representatives, directors, officers or employees (collectively, the "Certificate Insurer Parties"), arising out of, or related to or in connection with the Existing Fee Mortgagedissemination and/or use of any Information by the Certificate Insurer, Tenant will furnishincluding, but not limited to, claims based on allegations of inaccurate, incomplete or cause erroneous transfer of information by the Certificate Insurer to be furnished, to Landlord on Bloomberg or before twenty-five otherwise (25) days after the end of each calendar month the following items as they pertain to 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) PACE reports, than 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(xii) Together connection with the monthly reporting required pursuant Certificate Insurer's negligence or willful misconduct). The Trust Parties waive their rights to assert any such claims against the preceding clause Certificate Insurer Parties and fully and finally release the Certificate Insurer Parties from any and all such claims, demands, obligations, actions and liabilities (xi), an updated rent roll and a summary of all leasing activity then taking place at the Facility;
(xiii) Operating budget for each SPE Tenant for each Fiscal Year, which shall be delivered to Landlord no later other 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; and
(xix) In connection with the Certificate Insurer's negligence or willful misconduct). The Certificate Insurer makes no representations or warranties, expressed or implied, of any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except kind whatsoever with respect to the Existing Fee Mortgageaccuracy, which adequacy, timeliness, completeness, merchantability or fitness for any particular purpose of any Information in any form or manner. The Certificate Insurer reserves the right at any time to withdraw or suspend the dissemination of the Information by the Certificate Insurer. The authorizations, covenants and obligations of the Trust Parties under this section shall be at irrevocable and shall survive the sole cost and expense of Tenant as provided in the final sentence termination of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlAgreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Eqcc Home Equity Loan Trust 1998-3)
Statements. Tenant (a) On each Record Date, the Borrower shall furnish or cause deliver to be furnished Payee a statement showing the following calculation of Distributable Cash Flow, including gross proceeds and debits therefrom (including any reductions to Landlord:such gross proceeds and/or debits), with respect to the Payment Period applicable to such Record Date.
(i) As to SPE Tenant: (ab) Within ninety (90) days after the end of each Fiscal Year calendar year, the Borrower shall deliver to Payee a statement showing the computation of Distributable Cash Flow, including gross proceeds and debits therefrom (commencing with the Fiscal Year ending December 31, 2017including any reductions to such gross proceeds and/or debits), annual financial statements audited for the preceding calendar year (or portion thereof during which Distributable Cash Flow is required to be calculated).
(c) If Payee takes exception to any item or items included in any monthly statement required by an Accountant Section 2.3(a), Payee must notify the Borrower in accordance with GAAP covering such Fiscal Year writing within one hundred and containing statement of profit and loss, a balance sheet, and statement of cash flows for SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and twenty (b) within sixty (60120) days after the end of each the calendar year with respect to which such statement relates. Such notice must set forth in reasonable detail the specific debits complained of and to which exception is taken or the first three Fiscal Quarters of each Fiscal Year (commencing with specific credits which should have been made and allowed. Adjustments shall be made for all complaints and exceptions that are agreed to by the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter Parties and the applicable prior year Fiscal QuarterBorrower and Payee hereby agree to use commercially reasonable efforts to resolve any dispute regarding Payee’s complaints and exceptions; provided that if the Borrower and Payee have not resolved such dispute within 60 days after Payee provides an exception notice pursuant to this Section 2.3, in each casethen the Borrower and Payee shall agree upon an independent Third Party oil and gas accountant to resolve such dispute. If the Borrower and Payee cannot agree upon an independent Third Party oil and gas accountant to resolve such dispute, then either the Borrower or Payee may petition to the extent required as have a court of law appoint such independent Third Party oil and gas accountant. If such dispute is to be resolved by an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position independent Third Party oil and results of operations of 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:
gas accountant (A) annual financial statements audited by CEOC’s Accountant in accordance with GAAP covering the Borrower and Payee will provide such Fiscal Year and containing statement of profit and lossinformation as such accountant may reasonably request, 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 costs of such Accountant in connection with such Financial Statements has been made in accordance with GAAP and (2) a certificate, executed accountant shall be shared equally 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 Borrower 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);
(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 theretoPayee, and (BC) certifying that the decision by 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 accountant shall be provided (x) within sixty (60) days after conclusive, final and binding on the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); and
(C) such additional information Borrower 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 the 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectively, or the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 LandlPayee.
Appears in 1 contract
Sources: Conveyance and Agreement of Net Profits Interest (Trans Energy Inc)
Statements. Tenant Lessee shall furnish or cause to be furnished the following statements ---------- to LandlordLessor within thirty (30) days after Lessor's written request therefor, except for the statements required by subsections (a), (c), (e), (f) and (g) below, which shall be provided as and when required:
(i) As to SPE Tenant: (a) Within ninety (90) within 120 days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end fiscal year of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31following Persons, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and lossas applicable, a balance sheet, and statement copy of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 audited Consolidated Financials of Kindred Healthcare, Inc. 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 its consolidated Subsidiaries as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federal, state or local regulatory agency with jurisdiction over Landlord, PropCo 1, PropCo or Landlord REIT, in each case end of clause (i), (ii) and (iii), subject to Section 23.1(c) below;
(iii) As to CEC:
(A) annual financial statements audited by CEC’s Accountant in accordance with GAAP covering such Fiscal Year and containing statement of profit and loss, a balance sheetthe most recent ended fiscal year, and statement related audited consolidated statements of cash flows for CECincome, including changes in common stock and other stockholders' equity and changes in the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC Kindred Healthcare, Inc. and its consolidated 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 CEC’s Accountant in connection with such Financial Statements has been made fiscal year, prepared in accordance with GAAP, such Consolidated Financial statements to be certified by nationally recognized certified public accountants; and (ii) if prepared and made available to creditors of Kindred Healthcare, Inc. or any other Guarantor and/or Lessee, audited (or if prepared, but unaudited and made available to other creditors, unaudited) Consolidated Financials of any such other Guarantor, Lessee and any other material Subsidiary of Kindred Healthcare, Inc. (i.e., a Subsidiary of Kindred Healthcare, Inc. which generates Fifteen Percent (15%) or more of the consolidated revenues of Kindred Healthcare, Inc.) and each of their consolidated Subsidiaries as of the end of the most recently ended fiscal year, and related audited (if prepared, but unaudited, unaudited) consolidated statements income, changes in common stock or membership interests and other stockholders' or members' equity and changes in the financial position of any such other Guarantor, Lessee and/or such a material Subsidiary of Kindred Healthcare, Inc. and their consolidated Subsidiaries for such fiscal year, prepared in accordance with GAAP;
(b) an Officer's Certificate of Lessee stating that to the best of the signer's knowledge and belief after making due inquiry, Lessee is not in default in the performance or observance of any of the terms of this Lease, or if Lessee shall be provided in default, specifying all such defaults, the nature thereof, and the steps being taken to remedy the same;
(c) during the last eighteen (18) months of the Term, within ninety thirty (9030) days after the end same are required to be submitted or delivered to the appropriate governmental agency for such Facility, all monthly consolidated financial reports Lessee produces for reporting purposes and detailed statements of income and detailed operational statistics regarding occupancy rates, patient and resident mix and patient and resident rates by type for each Fiscal Year Facility; and during all other periods during the Term, within thirty (commencing with the Fiscal Year ending December 31, 2017);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 (6030) days after the end same are required to be submitted or delivered to the appropriate governmental agency for such Facility, all quarterly consolidated financial reports Lessee produces for reporting purposes and detailed statements of income and detailed operational statistics regarding occupancy rates, patient and resident mix and patient and resident rates by type for each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017)Facility for Lessee's most recently ended quarter;
(Cd) within thirty (30) days after the same are required to be submitted or delivered to the appropriate governmental agency for such additional information Facility, copies of the then most recent cost report for each Facility which is required to be filed or submitted with the appropriate governmental agency for such Facility;
(e) within thirty (30) days after the same are required to be filed, copies of the most recent annual reports and unaudited quarterly financial information concerning of information, documents and other reports, or copies of such portions of any of the Leased Property foregoing as the SEC may prescribe in connection therewith and Tenantwhich Lessee or Guarantor is required to file with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934;
(f) within thirty (30) days after receipt of the same, which information shall be limited to balance sheets, income statements, and statements copies of cash flow, as Landlord, PropCo 1, PropCo or Landlord REIT may require for all written communications received by Lessee from any ongoing filings with or reports regulatory agency relating to (i) the SEC under both the Securities Act surveys of any Facility for purposes of licensure, Medicare and the Exchange Act, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports Medicaid certification and registration statements to be filed by Landlord, PropCo 1, PropCo or Landlord REIT during the Term accreditation (including plans of this Lease, correction) and (ii) the Internal Revenue Service (including in respect of Landlord REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and (iii) any other federalproceeding, state formal or local regulatory agency with jurisdiction over Landlordinformal, 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 the Facility cited deficiencies with respect to services and activities provided and performed at any Facility, including patient and resident care, patient and resident activities, patient and resident therapy, dietary, medical records, drugs and medicines, supplies, housekeeping and maintenance, or the prior Lease 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 condition 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 the 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 (or Manager) 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) Facility. Within three (3) Business Days days of obtaining actual knowledge receipt 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 the Facility), a written notice to Landlord regarding the same, which notice shall include copies of all written communications received by Lessee from any regulation agency and involving an actual warning, imposition of a detailed description of the Tenant Event of Default (fine 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 the Facility, Tenant, CEOC, CEC and their Affiliates which shall be limited to balance sheets and income statements (and, without limitation, all information concerning Tenant, CEOC, CEC and any of their Affiliates, respectivelya penalty, or the Facility suspension, termination or the business revocation 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, in connection with the Existing Fee Mortgage, Tenant will furnish, or cause Facility's license 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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 operated in accordance with Section 22.3its Primary Intended Use;
(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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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;
(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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause (B) does not at the time furnished contain any untrue statement of any material fact and (ii) certifying as to the accuracy of the representations made by Tenant to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) to the extent that any such representation is made as of a specific date, in which case such representation is accurate and complete in all material respects as of such specific date, and (y) to the extent any such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs of the Existing Fee Mortgagee in connection therewith to the extent Landlord is required under the Existing Fee Mortgage Documents to pay such costs, and (II) reimburse Landlord for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. 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 Landl
Appears in 1 contract
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 SPE Tenant: (a) Within ninety (90) days after Available Funds and each Class’ Certificate Rate for the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2017), annual financial statements audited by an 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 SPE Tenant, plus a calculation of EBITDAR for such Fiscal Year; and (b) within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018), SPE Tenant’s quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows, plus a calculation of EBITDAR for such Fiscal Quarter and the applicable prior year Fiscal Quarter, in each case, to the extent required as an Additional Fee Mortgagee Requirement, together with a certificate, executed by the chief financial officer or treasurer of SPE Tenant, certifying that such financial statements fairly present, in all material respects, the financial position and results of operations of 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);
(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 Fiscal Quarters distribution to each Class of each Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2018); 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 “real estate investment trust” (within the meaning of Section 856(a) of the Code)) 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 CEC:
(A) annual financial statements audited by CEC’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 CEC, including the report thereon by such Accountant which shall be unqualified as to scope of audit of CEC and its Subsidiaries and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of CEC 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 CEC’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);
(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEC, together with a certificate, executed by the chief financial officer or treasurer of CEC certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEC 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 Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September 30, 2017);
(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 distribution set forth in 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 “real estate investment trust” (within interest and the meaning amount thereof in respect of Section 856(a) any Class Interest Carryover Shortfall, and the amount of the Code)) 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) belowClass 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 the Facility with respect to the prior Lease 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 the 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 (or Manager) 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 Required Overcollateralization Amount as of the Facilityclose 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 month prior to the Distribution Date;
(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 each Pre-Funding Distribution Date, 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), a written notice stating separately any amounts received from the cap provider with respect to Landlord regarding the sameInterest Rate Cap Agreements, which notice shall include a detailed description and the amount of Net Rate Cap Carryover remaining for each such Class;
(xxv) [Reserved];
(xxvi) for each Pre-Funding Distribution Date, the remaining amount in the Pre-Funding Account; and
(xxvii) the amount 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 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 report to the FacilityServicer, Tenantthe Seller, CEOCthe Certificate Insurer, CEC the Certificateholders, the Rating Agencies, Bloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) and their Affiliates which shall be limited to balance sheets and income statements Intex Solutions (andat ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, without limitation▇▇▇▇▇▇▇, all information concerning Tenant▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, CEOC, CEC and any of their Affiliates, respectively, or Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the 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, in connection with the Existing Fee Mortgage, 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 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 and entertainment operating metrics 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 (not including any contributions to the FF&E Reserve), and other information reasonably necessary and sufficient to fairly represent the financial position and results of operations of SPE Tenant during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses; (C) a calculation of EBITDAR; and (D) 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;
(xi) The monthly revenue and Capital Expenditure reporting required pursuant to Section 10.5(b);
(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 the 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; and
(xix) In connection with any Fee Mortgagee Securitization, Tenant shall, upon the written request of Landlord:
(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, 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 (iii) of this parenthetical), as is reasonably necessary to the extent reasonably requested by provide to 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;
(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 Person 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, except with respect to the Existing Fee Mortgage, 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; and
(C) with respect to the Existing Fee Mortgage, deliver a certification to Landlord (i) certifying that statement containing the information set forth in such portions of any Disclosure Document approved by Tenant pursuant to the above clause subclauses (Biii) does not at the time furnished contain any untrue statement of any material fact and (iiiv) certifying as to the accuracy above, aggregated for such calendar year or applicable portion thereof during which such Person was a Certificateholder. Such obligation of the representations made by Tenant Trustee shall be deemed to Landlord under Section 8.2 and Exhibit L as of the date of the closing of such Fee Mortgage Securitization, except (x) have been satisfied to the extent that substantially comparable information shall be prepared and furnished by the Trustee to Certificateholders pursuant to any such representation is made 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 a specific date, the reports forwarded to the Holders of the Regular Certificates in which case such representation is accurate and complete in all material respects as respect of such specific dateDistribution Date and a statement setting forth the amounts actually distributed to the Class R Certificateholders on 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, and (y) 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 such representations require qualification on such date, setting forth such qualifications in reasonable detail (a “Tenant Securitization Certification”). In connection with a Fee Mortgagee Securitization in connection with the Existing Fee Mortgage, Tenant shall (I) be responsible for the costs requirements of the Existing Fee Mortgagee Code as from time to time in connection therewith force.
(e) The Servicer and the Trustee shall furnish to the Certificate Insurer, the Depositor, the Seller 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 copied or distributed except to the extent Landlord is required under by law or to the Existing Fee Mortgage Documents Rating Agencies. No Person entitled to pay receive copies of such costs, and (II) reimburse Landlord reports or diskettes or files or lists of Certificateholders shall use the information therein for the purpose of soliciting the customers of the Seller or for any such costs paid by Landlord within twenty (20) days of Landlord’s written request therefor. The Financial Statements provided pursuant to Section 23.1(b)(iii) shall be prepared other 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 Landlthis Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Renaissance Mort Accept Corp Home Eq Ln as Bk Cer Se 03 1)