Common use of Operating Expense Reserve Account Clause in Contracts

Operating Expense Reserve Account. (a) On or prior to the Closing Date, Borrowers shall establish and thereafter maintain with the Mezzanine Cash Management Bank an account for the purpose of reserving amounts in respect of Operating Expenses for the Mezzanine Properties (the "Operating Expense Reserve Account"). (b) On each Business Day during a Mezzanine Cash Management Period, the Mezzanine Cash Management Bank shall withdraw all available funds in the Mezzanine Cash Management Account and shall disburse such funds into the Operating Expense Reserve Account in accordance with the provisions set forth in Section 6.2 until an amount equal to the funds necessary to pay all Operating Expenses for the Mezzanine Properties which are (A) to be incurred during the applicable Interest Accrual Period in accordance with the Annual Budget, or (B) certified by Borrowers from time to time and approved by Lender in its sole discretion, has been deposited into the Operating Expense Reserve Account. (c) Upon the request of a Borrower at any time, provided that no Event of Default has occurred, Lender shall remit to such Borrower from the Operating Expense Reserve Account amounts to permit such Borrower to pay (or to reimburse such Borrower) for Operating Expenses incurred by such Borrower in connection with any of the Mezzanine Properties, provided that: (i) Such Borrower shall deliver to Lender invoices evidencing that the costs for which such disbursements are requested are due and payable; (ii) Such Borrower shall deliver to Lender an Officer's Certificate confirming that all such costs are within the limits of the Annual Budget and all such costs have been previously paid by such Borrower or will be paid from the proceeds of the requested disbursement; and (iii) Lender may condition the making of a requested disbursement on reasonable evidence establishing that each Borrower has applied any amounts previously received by it in accordance with this Section for the expenses to which specific draws made hereunder relate.

Operating Expense Reserve Account. (a) On or prior to the Closing Date, Borrowers shall establish and thereafter maintain each Payment Date commencing with the Mezzanine Cash Management Bank an account for Payment Date occurring in October, 2009, provided no Event of Default has occurred and is continuing, Lender shall cause amounts on deposit in the purpose of reserving amounts in respect of Operating Expenses for the Mezzanine Properties (the "Operating Expense Reserve Account to be transferred to an account with the Hotel Bank maintained by Borrower (the “Borrower Hotel Account"”) to pay for (i) operating expenses for the Property actually paid or accrued in such calendar month pursuant to the approved Annual Budget, or as otherwise approved by Lender in its reasonable discretion and (ii) taxes or fees imposed by the Gaming Authorities to the extent amounts on deposit in the Gaming Reserve Account are insufficient to pay such taxes or fees (collectively, the “Monthly Expenses”). Monthly Expenses may include Corporate Expenses payable by Borrower during the calendar month in which such Payment Date occurs which are set forth in the approved Annual Budget (collectively, the “Monthly Corporate Expenses”). The fees and expenses of the Hotel Bank shall be paid by Borrower. In the event the Hotel Bank can no longer maintain the Borrower Hotel Account as an Eligible Account, Lender shall have the right to cause the Borrower Hotel Account to be moved to a depositary institution, reasonably acceptable to Lender, that can maintain same as an Eligible Account. (b) On each Business Day during a Mezzanine Cash Management PeriodIf the actual Monthly Expenses paid by Borrower in any month are less than the amount transferred to Borrower for the payment of such items for such month pursuant to Section 9.2.3(a) above, the Mezzanine Cash Management Bank amount of such excess shall withdraw all available funds in the Mezzanine Cash Management Account and shall disburse such funds be deducted from future deposits into the Operating Expense Reserve Account in accordance with Section 9.4.1 hereof or upon request of Lender shall be deposited by Borrower back into the provisions set forth in Section 6.2 until an amount equal to the funds necessary to pay all Operating Expenses for the Mezzanine Properties which are (A) to be incurred during the applicable Interest Accrual Period Deposit Account and applied in accordance with the terms of this Section 9.4. 1. If the actual Monthly Expenses to be paid by Borrower in any month are more than the amount set forth in the approved Annual Budget, or (B) certified by Borrowers provided, no event of Default shall have occurred and be continuing, Borrower may request that Lender approve a disbursement for such additional amounts from time to time and approved by Lender in its sole discretion, has been deposited into the Operating Expense Reserve Account. , which approval shall not be unreasonably withheld or delayed. Within twenty (c20) Upon days after the request end of a Borrower at any timeeach month, provided that no Event of Default has occurred, Lender shall remit to such Borrower from the Operating Expense Reserve Account amounts to permit such Borrower to pay (or to reimburse such Borrower) for Operating Expenses incurred by such Borrower in connection with any of the Mezzanine Properties, provided that: (i) Such Borrower shall prepare and deliver to Lender invoices evidencing a financial statement in form and substance satisfactory to Lender in all material respects setting forth all amounts expended for Monthly Expenses during such month, including showing variances from the Approved Budget and setting forth a short explanation of any variance in excess of five percent (5%) of the budget line item in question and identifying any payments made to an Affiliate of Borrower and the reasons therefor. Each such financial statement shall be certified by an officer of Borrower as being true, correct and complete in all material respects and include a certification that the costs all amounts transferred to Borrower pursuant to Section 9.2.3(a) above were expended for which such disbursements are requested are due and payable; (ii) Such Monthly Expenses in accordance with said Section 9.2.3(a). Borrower shall promptly, but not later than five (5) Business Days after Lender’s request therefor, deliver to Lender an Officer's Certificate confirming that all such costs are further documentation (including, without limitation, invoices, checks or copies of contracts, if any) and information as Lender may reasonably request regarding any payments described in Borrower’s financial statements. If Borrower shall fail to deposit any excess funds into the Deposit Account as provided in this subsection or provide its required financial statements or, after written request of Lender, reasonable evidence of expenditures, in each case, within the limits time periods provided in the preceding sentences of the Annual Budget this subsection and all such costs have been previously paid by failure continues for ten (10) or more days after notice of such Borrower or will be paid from the proceeds of the requested disbursement; and (iii) failure, then, in addition to any other remedies which Lender may condition have with respect thereto, Lender may elect not to fund any additional amounts into the making of a requested disbursement on reasonable evidence establishing that each Borrower has applied any amounts previously received by it Operating Expenses Reserve Account and/or Lender may continue to hold the funds in accordance with this the Operating Expenses Reserve Account until such failure is cured. 19. Section for the expenses to which specific draws made hereunder relate9.2.

Operating Expense Reserve Account. (a) On or prior to the Closing Date, Borrowers shall establish and thereafter maintain with the Mezzanine Cash Management Bank an account for the purpose of reserving amounts in respect of Operating Expenses for the Mezzanine Properties (the "Operating Expense Reserve Account"). (b) On each Business Day during a Cash Management Period or a Mezzanine Cash Management Period, the Mezzanine Cash Management Bank shall withdraw all available funds in the Mezzanine Cash Management Account and shall disburse such funds into the Operating Expense Reserve Account in accordance with the provisions set forth in Section 6.2 until an amount equal to the funds necessary to pay all Operating Expenses for the Mezzanine Properties which are (A) to be incurred during the applicable Interest Accrual Period in accordance with the Annual Budget, or (B) certified by Borrowers from time to time and approved by Lender in its sole discretion, has been deposited into the Operating Expense Reserve Account. (c) Upon the request of a Borrower at any time, provided that no Event of Default has occurred, Lender shall remit to such Borrower from the Operating Expense Reserve Account amounts to permit such Borrower to pay (or to reimburse such Borrower) for Operating Expenses incurred by such Borrower in connection with any of the Mezzanine Properties, provided that: (i) Such Borrower shall deliver to Lender invoices evidencing that the costs for which such disbursements are requested are due and payable; (ii) Such Borrower shall deliver to Lender an Officer's Certificate confirming that all such costs are within the limits of the Annual Budget and all such costs have been previously paid by such Borrower or will be paid from the proceeds of the requested disbursement; and (iii) Lender may condition the making of a requested disbursement on reasonable evidence establishing that each Borrower has applied any amounts previously received by it in accordance with this Section for the expenses to which specific draws made hereunder relate.

Operating Expense Reserve Account. (a) On or prior to the Closing Date, Borrowers the Issuers shall cause the Indenture Trustee to establish and thereafter maintain with the Mezzanine Cash Management Bank an a segregated trust account for the purpose of reserving amounts in respect of Operating Expenses for the Mezzanine Properties entitled "Railcar Notes Expense Reserve Account" at its Corporate Trust Office (the "Operating Expense Reserve Account") for the benefit of the Indenture Trustee on behalf of the Holders and the Class A Note Insurer. The Operating Expense Reserve Account shall consist of (a) a segregated subaccount (the "NARCAT OER Subaccount") in the name of NARCAT and NARCAT Mexico for the benefit of the Indenture Trustee on behalf of the Class A Note Insurer and the Holders and (b) a segregated subaccount (the "CARCAT OER Subaccount") in the name of CARCAT for the benefit of the Indenture Trustee on behalf of the Class A Note Insurer and the Holders. The Operating Expense Reserve Account will not be funded at closing. On each Payment Date, the Indenture Trustee shall, in accordance with instructions in the Monthly Servicer Report (or, to the extent not available on a timely basis or if the Controlling Party has notified the Indenture Trustee that the Monthly Servicer Report is incorrect, instructions given by the Controlling Party), transfer from (i) the NARCAT Collection Account to the NARCAT OER Subaccount the lesser of (x) the Operating Expense Deposit Amount related to each U.S. Railcar and each Mexican Railcar, and (y) an amount required to cause the balance of such subaccount (after giving effect to all amounts disbursed therefrom on such Payment Date) to equal $1,300,000 (the "NARCAT OER Subaccount Required Balance"), and (b) the CARCAT Collection Account to the CARCAT OER Subaccount the lesser of (x) the Operating Expense Deposit Amount related to each Canadian Railcar, and (y) an amount required to cause the balance of such subaccount (after giving effect to all amounts disbursed therefrom on such Payment Date) to equal $700,000 (the "CARCAT OER Subaccount Required Balance"). Any such transfers shall be made in accordance with the Source of Funds Requirements and to the extent of Available Funds remaining after the payments having a higher priority in Section 6.08 or Section 12.02(d), as applicable. Funds will be withdrawn from the NARCAT OER Subaccount and the CARCAT OER Subaccount to make the distributions described in Section 12.04(d) and shall not be available to the Holders or the Indenture Trustee for any other purpose; provided, however, that on the Stated Legal Maturity Date, all amounts on deposit in the NARCAT OER Subaccount will be deposited in the NARCAT Collection Account and all amounts on deposit in the CARCAT OER Subaccount will be deposited in the CARCAT Collection Account and paid as Available Funds pursuant to Section 12.02(d) or Section 6.08, as applicable. Upon release of the Lien of this Indenture, any amounts remaining on deposit in the NARCAT OER Subaccount will be returned to NARCAT and NARCAT Mexico in accordance with their respective interests therein or their designees and all amounts on deposit in the CARCAT OER Subaccount will be returned to CARCAT or its designees. (b) On each Upon an Issuer Order of (i) NARCAT and NARCAT Mexico, in the case of the NARCAT OER Subaccount, and (b) CARCAT, in the case of the CARCAT OER Subaccount, all or a portion of the Operating Expense Reserve Account shall be invested and reinvested at such Issuers' written direction in one or more Eligible Investments maturing no later than the Business Day during a Mezzanine Cash Management Periodprior to any disbursements made from such account. In the absence of an Issuer Order, the Mezzanine Cash Management Bank Indenture Trustee shall withdraw all available invest funds in the Mezzanine Cash Management Account and shall disburse such funds into the Operating Expense Reserve Account in accordance with Eligible Investments described in clause (f) of the provisions set forth definition thereof. Earnings on amounts on deposit in Section 6.2 until an amount equal the (a) NARCAT OER Subaccount shall be retained within the NARCAT OER Subaccount, except that on any Payment Date, amounts on deposit in the NARCAT OER Subaccount in excess of the NARCAT OER Subaccount Required Balance (after all required applications of such amounts on such date) shall be transferred to the funds necessary NARCAT Collection Account, and (b) the CARCAT OER Subaccount shall be retained within the CARCAT OER Subaccount, except that on any Payment Date, amounts on deposit in the CARCAT OER Subaccount in excess of the CARCAT OER Subaccount Required Balance (after all required applications of such amounts on such date) shall be transferred to pay all Operating Expenses the CARCAT Collection Account. Any loss resulting from such investments shall be charged to the applicable subaccount. Eligible Investments shall be made in the name of the Indenture Trustee for the Mezzanine Properties which are (A) to be incurred during benefit of the applicable Interest Accrual Period in accordance with Holders and the Annual Budget, or (B) certified by Borrowers from time to time and approved by Lender in its sole discretion, has been deposited into the Operating Expense Reserve AccountClass A Note Insurer. (c) Upon the request of a Borrower at If any time, amounts invested as provided that no Event of Default has occurred, Lender in Section 12.04(b) shall remit to such Borrower be needed for disbursement from the NARCAT OER Subaccount or the CARCAT OER Subaccount as set forth in Section 12.04(a) or (d), the Indenture Trustee shall cause such investments of the applicable subaccount to be sold or otherwise converted to cash to the credit of such subaccount. The Indenture Trustee shall not be liable for any investment loss resulting from investment of money in the NARCAT OER Subaccount or the CARCAT OER Subaccount in any Eligible Investment in accordance with the terms hereof (other than in its capacity as obligor under any Eligible Investment) except as a result of its negligence or misconduct. (d) Disbursements shall be made from the (a) NARCAT OER Subaccount for any Operating Expense Reserve Account amounts related to permit such Borrower the U.S. Railcars or the Mexican Railcars, or (b) CARCAT OER Subaccount for any Operating Expenses related to pay (or the Canadian Railcars, as applicable, in accordance with the Management Agreement, to reimburse such Borrower) the Manager for Operating Expenses any actual maintenance expenses incurred by such Borrower in connection with any the Railcars and as to which the Manager shall have delivered to the Indenture Trustee a Maintenance Expense Reimbursement Request pursuant to Section 2.06(b) of the Mezzanine PropertiesManagement Agreement; provided, provided that: (i) Such Borrower shall deliver to Lender invoices evidencing however, that the costs for which such disbursements are requested are due and payable; (ii) Such Borrower shall deliver to Lender an Officer's Certificate confirming that all such costs are within the limits of the Annual Budget and all such costs have been previously paid by such Borrower or will be paid from the proceeds of the requested disbursement; and (iii) Lender may condition the making of a requested disbursement on reasonable evidence establishing that each Borrower has applied any amounts previously received by it in accordance with this Section for the expenses to which specific draws made hereunder relateno more frequently than once per week.

Operating Expense Reserve Account. In the event that any Borrower is subject to a Management Agreement (aor shall hereafter enter into a replacement Management Agreement with respect to one or more Properties with Lender’s approval in accordance with Section 5.14), which Management Agreement or replacement Management Agreement does not require that operating expenses be paid by the Manager thereunder from Rents from the affected Individual Property(ies) On or prior to the Closing Datedeposited directly into Manager Account(s), Borrowers shall establish and thereafter maintain with pay to Lender on each Payment Date the Mezzanine monthly amount set forth in the approved Annual Budget for the calendar month following the month in which such Payment Date occurs for payment of approved Operating Expenses (pursuant to the applicable Annual Budget) at the applicable Individual Property(ies) covered by such Management Agreement or replacement Management Agreement for such month, which amounts shall be transferred into a subaccount of the Cash Management Bank an account Account for the purpose payment of reserving amounts in respect of such approved Operating Expenses for the Mezzanine Properties (the "“Operating Expense Reserve Account"”). (b) On each Business Day during a Mezzanine Cash Management Period, the Mezzanine Cash Management Bank shall withdraw all available funds . Amounts on deposit in the Mezzanine Cash Management Account and shall disburse such funds into the Operating Expense Reserve Account in accordance with are referred to as the provisions set forth in Section 6.2 until an amount equal to the funds necessary to pay all Operating Expenses for the Mezzanine Properties which are (A) to be incurred during the applicable Interest Accrual Period in accordance with the Annual Budget, or (B) certified by Borrowers from time to time and approved by Lender in its sole discretion, has been deposited into the “Operating Expense Reserve Account. (c) Upon the request of a Borrower at any time, provided that Funds”. Provided no Event of Default has occurredoccurred and is continuing, Lender shall remit disburse funds held in the Operating Expense Reserve Account to the applicable Borrower for the payment of Operating Expenses, (but not, in any event, for any Corporate G&A Expenses or Corporate Taxes), within five (5) Business Days after delivery by the applicable Borrower to Lender of a written request therefor, provided that such written request (a) contains a description satisfactory to Lender of the requested amount and the specific Operating Expenses for which such amount is being requested, and (b) is accompanied by an Officer’s Certificate certifying that (i) such Operating Expenses are set forth in a Lender-approved Annual Budget or have otherwise been approved by Lender (and specifying the applicable Annual Budget line items, or other Lender approval, as applicable); (ii) such Operating Expenses have not been the subject of a previous disbursement from any Reserve Account or Senior Mezzanine Reserve Account (including the Borrower Residual Account and the Working Capital Reserve); (iii) all previous disbursements from the Operating Expense Reserve Account amounts to permit such Borrower to pay (or to reimburse such Borrower) for Operating Expenses incurred by such Borrower in connection with any of the Mezzanine Properties, provided that: (i) Such Borrower shall deliver to Lender invoices evidencing that the costs for which such disbursements are requested are due and payable; (ii) Such Borrower shall deliver to Lender an Officer's Certificate confirming that all such costs are within the limits of the Annual Budget and all such costs have been previously paid by such Borrower or will be used to pay the previously identified approved Operating Expenses pursuant to the applicable Annual Budget or other Lender approval; and (iv) such Operating Expenses have not been, nor will be, paid by the Manager directly. Notwithstanding the foregoing, Lender shall not be obligated to fund any amounts from the proceeds Operating Expense Reserve Account more than once per month (and subject to Section 9.7(z) above), nor in increments less than $10,000, except any disbursement for FF&E Replacements (as described in the immediately following sentence), which shall not be in increments less than $100,000 (except in each case any disbursement that reduces the amount in the Operating Expense Reserve Account to zero, which disbursement may be less than $10,000 or $100,000, respectively). Without limiting the foregoing, Borrower may request funds from the Operating Expense Reserve Account for FF&E Replacements, but only if all of the requested disbursement; and (iii) Lender may condition the making of a requested disbursement on reasonable evidence establishing that each Borrower has applied any amounts previously received by it conditions set forth in accordance with this Section 9.9 and Section 9.5 are fully satisfied, and only if sufficient amounts are not on deposit in the FF&E Replacement Reserve or the Capital Replacements Reserve for the expenses to which specific draws made hereunder relatepayment of the costs of such FF&E Replacements.