05A. Lessee’s Operating Expense estimates: On or about April 1st of each calendar year, Lessor will provide Lessee with a statement of:
(1) Lessee’s annual share of estimated Operating Expenses in excess of Base Year Operating Expenses for the then current calendar year; (2) Lessee’s monthly Operating Expense estimate for the then current year; and, (3) Lessee’s retroactive estimate correction billing (for the period of January 1st through the date immediately prior to the commencement date of Lessee’s new monthly Operating Expense estimate) for the difference between Lessee’s new and previously billed monthly Operating Expense estimates for the then current year.
05A. The Primary Servicer shall establish a collection account (hereinafter the “Primary Servicer Loan Combination Custodial Account”), meeting all of the requirements of the Loan Combination Custodial Account, and references to the Loan Combination Custodial Account shall be references to such Primary Servicer Loan Combination Custodial Account. The creation of any Primary Servicer Loan Combination Custodial Account shall be evidenced by a certification in the form of Exhibit F attached hereto and a copy of such certification shall be furnished to the Master Servicer within three (3) days of the Closing Date and thereafter to the Master Servicer upon any transfer of the Primary Servicer Loan Combination Custodial Account. Notwithstanding Section 3.05A(b) of the Pooling and Servicing Agreement, the Primary Servicer shall deposit into the Primary Servicer Loan Combination Custodial Account and include in its Primary Servicer Serviced Loan Combination Remittance Amount all Ancillary Fees, Consent Fees, Assumption Fees, assumption application fees, defeasance fees, review fees and other amounts collected by the Primary Servicer to the extent not constituting Additional Servicing Compensation and/or Additional Special Servicing Compensation (in each case, other than those to which the Primary Servicer is entitled pursuant to Section 3.01(c)(19) of this Agreement). Any amounts of Additional Special Servicing Compensation payable to the Special Servicer shall be remitted to the Special Servicer by the Master Servicer. For purposes of Section 3.05A(c) of the Pooling and Servicing Agreement, the Master Servicer shall direct the Special Servicer to make payment of amounts referenced therein directly to the Primary Servicer for deposit in the Primary Servicer Loan Combination Custodial Account.
05A. Section 6.05A of the Credit Agreement is hereby amended as follows:
05A. The Master Servicer shall reimburse itself, the Trustee or the Fiscal Agent, as appropriate and in accordance with Section 3.03, Section 3.05(a) or Section 3.05A as applicable, for any Servicing Advance as soon as practicable after funds available for such purpose are deposited in the related Custodial Account.
05A. Permitted Withdrawals From the Cherry Creek Mall Custodial Account, Annapolis Mall Custodial Account, Westfield Portfolio Custodial Account and Sangertown Square Custodial Account. The Master Servicer may, from time to time, make withdrawals from the Cherry Creek Mall Custodial Account, the Annapolis Mall Custodial Account, the Westfield Portfolio Custodial Account or the Sangertown Square Custodial Account, as the case may be, for any of the following purposes (the order set forth below not constituting an order of priority for such withdrawals):
(i) to make remittances on the applicable Loan Pair Remittance Date to the related Companion Loan Noteholder and to the Trust in accordance with SECTION 4.01 of the related Co-Lender and Servicing Agreement, such remittances to the Trust to be made into the Pool Custodial Account;
(ii) to reimburse, FIRST, the Fiscal Agent, SECOND, the Trustee, THIRD, the Cherry Creek Mall Fiscal Agent, the Annapolis Mall Fiscal Agent, the Westfield Portfolio Fiscal Agent or the Sangertown Square Fiscal Agent, as applicable, FOURTH, the Cherry Creek Mall Trustee, the Annapolis Mall Trustee, the Westfield Portfolio Trustee or the Sangertown Square Trustee, as applicable, and LAST, itself, in that order, for xxxxxxxxxxxx X&X Advances made by such party (with its own funds) with respect to the related Loan Pair, any such party's rights to reimbursement pursuant to this CLAUSE (ii) with respect to any P&I Advance being limited to amounts that represent late collections of interest and principal (net of the related Master Servicing Fees and any related Workout Fees or Liquidation Fees) received in respect of the particular loan in the related Loan Pair as to which such P&I Advance was made;
(iii) to pay to itself earned and unpaid Master Servicing Fees with respect to the related Loan Pair, the Master Servicer's right to payment pursuant to this CLAUSE (iii) with respect to either loan in such Loan Pair being limited to amounts received on or in respect of such loan that are allocable as a recovery of interest thereon;
(iv) to reimburse, FIRST, the Fiscal Agent, SECOND, the Trustee, THIRD, the Cherry Creek Mall Fiscal Agent, the Annapolis Mall Fiscal Agent, the Westfield Portfolio Fiscal Agent or the Sangertown Square Fiscal Agent, as applicable, FOURTH, the Cherry Creek Mall Trustee, the Annapolis Mall Trustee, the Westfield Portfolio Trustee or the Sangertown Square Trustee, as applicable, and LAST, itself, in that order, for any xx...
05A. 1. hereof shall be made pursuant to the terms of the Capital Maintenance Agreement.
05A. 2. hereof shall be made by way of a capital contribution to Coating Company in exchange for the issuance of new Common Shares at the issuance price of Ten Thousand Dollars ($10,000) per Common Share (for purposes of this Section 4.05, the "Additional Common Shares"). Such payment shall be made by federal funds bank wire transfer to Coating Company within sixty (60) Banking Days (as defined in the Capital Maintenance Agreement) after the date of the Joint Notice relating thereto, unless the Joint Notice specifies a different Due Date.
05A. In the event Xxxxxxxxx and Monro cannot resolve a disputed item, such dispute shall be resolved by arbitration as provided in Paragraph 11.03 of this Agreement.
05A. In no event shall the Master Servicer or the Special Servicer be liable or responsible for any action taken or omitted to be taken by the other of them (unless they are the same Person or Affiliates) or by the Depositor, the Trustee, any Certificateholder or any Companion Loan Noteholder, subject to the provisions of SECTION 8.05(c).
05A. The Master Servicer shall, in accordance with Section 3.05(a) and/or Section 3.05A, reimburse itself, the Trustee or the Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose are deposited in the applicable Custodial Account. Notwithstanding the foregoing, upon a determination that a previously made P&I Advance is a Nonrecoverable P&I Advance, instead of obtaining reimbursement out of general collections on the Mortgage Pool immediately, any of the Master Servicer, the Trustee or the Fiscal Agent, as applicable, may, in its sole discretion, elect to obtain reimbursement for such Nonrecoverable P&I Advance over a period of time (not to exceed 12 months or such longer period of time as is approved in writing by the Controlling Class Representative) and the unreimbursed portion of such P&I Advance will accrue interest at the Reimbursement Rate in effect from time to time. At any time after such a determination to obtain reimbursement over time in accordance with the preceding sentence, the Master Servicer, the Trustee or the Fiscal Agent, as applicable, may, in its sole discretion, decide to obtain reimbursement immediately. The fact that a decision to recover such Nonrecoverable P&I Advance over time, or not to do so, benefits some Classes of Certificateholders to the detriment of other Classes shall not constitute a violation of the Servicing Standard by the Master Servicer or a breach of any fiduciary duty owed to the Certificateholders by the Trustee or the Fiscal Agent, or a breach of any other contractual obligation owed to the Certificateholders by any party to this Agreement.
