Exhibit 4.1
EXECUTION VERSION
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Depositor
and
MIDLAND LOAN SERVICES, INC.
Master Servicer and Special Servicer
and
WELLS FARGO BANK, N.A.
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2005
-------------------------
$1,737,922,951 (approximate)
Commercial Mortgage Pass-Through Certificates
Series 2005-MCP1
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
<S>
<C>
<C>
SECTION 1.01.
Defined
Terms..................................................................................6
SECTION 1.02.
Certain Adjustments to the Principal Distributions on the
Certificates........................78
ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01.
Conveyance of Trust Mortgage
Loans............................................................81
SECTION 2.02.
Acceptance of the Trust Fund by
Trustee.......................................................83
SECTION 2.03.
Mortgage Loan Seller's Repurchase or Substitution of Trust
Mortgage
Loans for Document Defects and Breaches of Representations and
Warranties...................85
SECTION 2.04.
Representations and Warranties of
Depositor...................................................89
SECTION 2.05.
Acceptance of REMIC I by
Trustee..............................................................90
SECTION 2.06.
Execution, Authentication and Delivery of Class R-I
Certificates..............................90
SECTION 2.07.
Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by
Trustee....................90
SECTION 2.08.
Execution, Authentication and Delivery of REMIC II
Certificates...............................91
SECTION 2.09.
Execution, Authentication and Delivery of Class Z
Certificates................................91
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01.
Administration of the Mortgage
Loans..........................................................92
SECTION 3.02.
Collection of Mortgage Loan
Payments..........................................................94
SECTION 3.03.
Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts......97
SECTION 3.04.
Collection Account, Interest Reserve Account, Additional Interest
Account,
Distribution Account, Gain-on-Sale Reserve Account and
Loan Combination Custodial
Accounts........................................................102
SECTION 3.05.
Permitted Withdrawals From the Collection Account, the Interest
Reserve Account,
the Additional Interest Account, the Distribution Account and the
Loan Combination
Custodial
Accounts.........................................................................109
SECTION 3.06.
Investment of Funds in the Servicing Accounts, the Reserve
Accounts, the Collection Account,
the Distribution Account, the Loan Combination Custodial Accounts,
the Additional Interest
Account, the Gain-on-Sale Reserve Account and the REO
Accounts.............................119
SECTION 3.07.
Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage................121
<PAGE>
SECTION 3.08.
Enforcement of Alienation
Clauses............................................................125
SECTION 3.09.
Realization Upon Defaulted Mortgage Loans; Required
Appraisals...............................127
SECTION 3.10.
Trustee and Custodian to Cooperate; Release of Mortgage
Files................................132
SECTION 3.11.
Servicing
Compensation.......................................................................133
SECTION 3.12.
Property
Inspections; Collection of Financial Statements; Delivery of
Certain Reports........139
SECTION 3.13.
Annual Statement as to
Compliance............................................................143
SECTION 3.14.
Reports by Independent Public
Accountants....................................................143
SECTION 3.15.
Access to Certain
Information................................................................144
SECTION 3.16.
Title to REO Property; REO
Accounts..........................................................147
SECTION 3.17.
Management of REO
Property...................................................................149
SECTION 3.18.
Resolution of Defaulted Mortgage Loans and REO
Properties....................................153
SECTION 3.19.
Additional Obligations of Master
Servicer....................................................158
SECTION 3.20.
Modifications, Waivers, Amendments and
Consents..............................................160
SECTION 3.21.
Transfer of Servicing Between Master Servicer and Special Servicer;
Record Keeping...........166
SECTION 3.22.
Sub-Servicing
Agreements.....................................................................169
SECTION 3.23.
Representations and Warranties of Master Servicer and Special
Servicer.......................172
SECTION 3.24.
Sub-Servicing Agreement Representation and
Warranty..........................................174
SECTION 3.25.
Designation of Controlling Class
Representative..............................................175
SECTION 3.26.
Application of Default
Charges...............................................................176
SECTION 3.27.
Controlling Class Representative Contact with
Servicer.......................................178
SECTION 3.28.
Certain Matters Regarding the Loan
Combinations..............................................178
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01.
Distributions................................................................................180
SECTION 4.02.
Statements to
Certificateholders.............................................................192
SECTION 4.03.
P&I Advances; Reimbursement of P&I Advances and Servicing
Advances...........................196
SECTION 4.04.
Allocation of Realized Losses and Additional Trust Fund
Expenses.............................201
SECTION 4.05.
Calculations.................................................................................203
SECTION 4.06.
Use of
Agents................................................................................203
ARTICLE V
THE CERTIFICATES
SECTION 5.01.
The
Certificates.............................................................................204
SECTION 5.02.
Registration of Transfer and Exchange of
Certificates........................................204
SECTION 5.03.
Book-Entry
Certificates......................................................................211
SECTION 5.04.
Mutilated, Destroyed, Lost or Stolen
Certificates............................................212
SECTION 5.05.
Persons Deemed
Owners........................................................................213
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01.
Liability of Depositor, Master Servicer and Special
Servicer.................................214
SECTION 6.02.
Merger, Consolidation or Conversion of Depositor or Master Servicer
or Special Servicer......214
SECTION 6.03.
Limitation on Liability of the Depositor, the Master Servicer,
the Special Servicer and
Others............................................................214
SECTION 6.04.
Resignation of Master Servicer and the Special
Servicer......................................217
SECTION 6.05.
Rights of Depositor and Trustee in Respect of Master Servicer and
the Special Servicer.......218
SECTION 6.06.
Depositor, Master Servicer and Special Servicer to Cooperate with
Trustee....................219
SECTION 6.07.
Depositor, Special Servicer and Trustee to Cooperate with Master
Servicer....................219
SECTION 6.08.
Depositor, Master Servicer and Trustee to Cooperate with Special
Servicer....................219
SECTION 6.09.
Designation of Special Servicer by the Controlling Class;
Termination of Special Servicer With
Respect to Westchester Trust Mortgage
Loan.................................................219
SECTION 6.10.
Master Servicer or Special Servicer as Owner of a
Certificate................................222
SECTION 6.11.
The Controlling Class
Representative.........................................................222
SECTION 6.12.
Certain Matters with Respect to the Westchester Loan
Combination.............................225
ARTICLE VII
DEFAULT
SECTION 7.01.
Events of
Default............................................................................229
SECTION 7.02.
Trustee to Act; Appointment of
Successor.....................................................234
SECTION 7.03.
Notification to
Certificateholders...........................................................235
SECTION 7.04.
Waiver of Events of
Default..................................................................235
SECTION 7.05.
Additional Remedies of Trustee Upon Event of
Default.........................................235
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01.
Duties of
Trustee............................................................................237
SECTION 8.02.
Certain Matters Affecting
Trustee............................................................238
SECTION 8.03.
Trustee and Fiscal Agent Not Liable for Validity or Sufficiency
of
Certificates or Mortgage
Loans.............................................................239
SECTION 8.04.
Trustee and Fiscal Agent May Own
Certificates................................................240
SECTION 8.05.
Fees and Expenses of Trustee; Indemnification of
Trustee.....................................240
SECTION 8.06.
Eligibility Requirements for
Trustee.........................................................241
SECTION 8.07.
Resignation and Removal of
Trustee...........................................................241
SECTION 8.08.
Successor
Trustee............................................................................242
SECTION 8.09.
Merger or Consolidation of
Trustee...........................................................243
SECTION 8.10.
Appointment of Co-Trustee or Separate
Trustee................................................243
SECTION 8.11.
Appointment of
Custodians....................................................................244
SECTION 8.12.
Appointment of Authenticating
Agents.........................................................245
SECTION 8.13.
Access to Certain
Information................................................................246
SECTION 8.14.
Appointment of REMIC
Administrators..........................................................246
SECTION 8.15.
Representations, Warranties and Covenants of
Trustee.........................................247
SECTION 8.16.
Reports to the Securities and Exchange
Commission............................................248
SECTION 8.17.
Maintenance of Mortgage
File.................................................................253
SECTION 8.18.
Appointment of Fiscal
Agent..................................................................253
ARTICLE IX
TERMINATION
SECTION 9.01.
Termination Upon Repurchase or Liquidation of All Trust Mortgage
Loans.......................255
SECTION 9.02.
Additional Termination
Requirements..........................................................258
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01.
REMIC
Administration.........................................................................259
SECTION 10.02.
Grantor Trust
Administration.................................................................262
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01.
Amendment....................................................................................265
SECTION 11.02.
Recordation of Agreement;
Counterparts.......................................................267
SECTION 11.03.
Limitation on Rights of
Certificateholders...................................................267
SECTION 11.04.
Governing
Law................................................................................268
SECTION 11.05.
Notices......................................................................................268
SECTION 11.06.
Severability of
Provisions...................................................................269
SECTION 11.07.
Grant of a Security
Interest.................................................................270
SECTION 11.08.
Streit
Act...................................................................................270
SECTION 11.09.
Successors and Assigns;
Beneficiaries........................................................270
SECTION 11.10.
Article and Section
Headings.................................................................270
SECTION 11.11.
Notices to Rating
Agencies...................................................................271
SECTION 11.12.
Complete
Agreement...........................................................................272
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
Exhibit No.
Exhibit Description
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-------------------
<S>
<C>
A-1
Form of Class A-1, A-2, A-3, A-SB, A-4 and A-1A Certificates
A-2
Form of Class XP Certificate
A-3
Form of Class XC Certificate
A-4
Form of Class AM, AJ, B, C and D Certificates
A-5
Form of Class E, F, G and H Certificates
A-6
Form of Class J, K, L, M, N, P and Q Certificates
A-7
Form of Class R-I and R-II Certificates
A-8
Form of Class Z Certificate
B
Mortgage Loan Schedule
C
Form of Custodial Certification
D-1
Form of Master Servicer Request for Release
D-2
Form of Special Servicer Request for Release
E-1
Form of Transferor Certificate for Transfers of Definitive
Non-Registered Certificates
(Pursuant to Section 5.02(c))
E-2A
Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
(Pursuant to Section 5.02(c))
E-2B
Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
(Pursuant to Section 5.02(c))
E-2C
Form of Transferee Certificate for Transfers of Interests in Rule
144A Global Certificates
(Pursuant to Section 5.02(c))
F-1
Form I of Transferee Certificate Regarding ERISA Matters
(Definitive Non-Registered Certificates) (Pursuant to Section
5.02(c))
F-2
Form II of Transferee Certificate Regarding ERISA Matters
(Book-Entry Non-Registered Certificates) (Pursuant to Section
5.02(c))
G-1
Form of Transfer Affidavit and Agreement Regarding Residual
Certificates
(Pursuant to Section 5.02(d)(i)(4))
G-2
Form of Transferor Certificate for Transfers of Residual
Certificates
(Pursuant to Section 5.02(d)(i)(4))
H-1
Form of Notice and Acknowledgment (Regarding Proposed Special
Servicer)
H-2
Form of Acknowledgment of Proposed Special Servicer
I-1
Form of Information Request from Certificateholder or Certificate
Owner
I-2
Form of Information Request from Prospective Investor
J
List of Mortgage Loans with Secured Creditor Impaired Property
Environmental Insurance Policies
K
Form of S&P Defeasance Certification
L
Class XP Reference Rate Schedule
M-1
Form of Purchase Option Notice
M-2
Form of Purchase Option Assignment by the Special Servicer
M-3
Form of Purchase Option Assignment by Plurality Subordinate
Certificateholder
N
Form of Distribution Date Statement
O
Form of Sarbanes-Oxley Certification by the Depositor
P-1
Form of Certification to be Provided by the Master Servicer to the
Depositor
P-2
Form of Certification to be Provided by the Trustee to the
Depositor
P-3
Form of Certification to be Provided by the Special Servicer to the
Depositor
Q
[RESERVED]
R
List of Sub-Servicing Agreements In Effect on the Closing Date
S
Class A-SB Planned Principal Balance
T
List of Mortgage Loans Requiring Operations and Maintenance
Plans
</TABLE>
<PAGE>
POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement is dated and effective as
of
June 1, 2005, among MERRILL LYNCH MORTGAGE INVESTORS, INC., as
Depositor,
MIDLAND LOAN SERVICES, INC., as Master Servicer and as Special
Servicer, and
WELLS FARGO BANK, N.A., as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates,
to
be issued hereunder in multiple classes, which in the aggregate
will evidence
the entire beneficial ownership interest in a trust fund to be
created
hereunder, the primary assets of which will be the Trust Mortgage
Loans.
As provided herein, the Trustee will elect to treat the
segregated
pool of assets consisting of all of the Trust Mortgage Loans
(exclusive of the
Excess Servicing Strip and that portion of the interest payments on
the Trust
Mortgage Loans that constitutes Additional Interest) and certain
other related
assets subject to this Agreement as a REMIC for federal income tax
purposes,
and such segregated pool of assets will be designated as "REMIC I".
The Class
R-I Certificates will evidence the sole class of "residual
interests" in REMIC
I for purposes of the REMIC Provisions under federal income tax
law. For
federal income tax purposes, each REMIC I Regular Interest will be
designated
as a separate "regular interest" in REMIC I for purposes of the
REMIC
Provisions under federal income tax law. None of the REMIC I
Regular Interests
will be certificated.
As provided herein, the Trustee will elect to treat the
segregated
pool of assets consisting of all of the REMIC I Regular Interests
as a REMIC
for federal income tax purposes, and such segregated pool of assets
will be
designated as "REMIC II". The Class R-II Certificates will evidence
the sole
class of "residual interests" in REMIC II for purposes of the REMIC
Provisions
under federal income tax law. For federal income tax purposes, each
Class of
the Regular Certificates (or, in the case of a Class of Class X
Certificates,
each Component thereof) will be designated as a separate "regular
interest" in
REMIC II for purposes of the REMIC Provisions under federal income
tax law.
The following table sets forth: (i) the class designation of
each
Class of Sequential Pay Certificates; (ii) the Original Class
Principal
Balance for each Class of Sequential Pay Certificates; (iii) the
corresponding
REMIC I Regular Interest or REMIC I Regular Interests (each, a
"Corresponding
REMIC I Regular Interest") for each Class of Sequential Pay
Certificates; and
(iv) the initial REMIC I Principal Balance of each Corresponding
REMIC I
Regular Interest.
<TABLE>
<CAPTION>
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class of
Corresponding
Sequential Pay
Original Class
REMIC I
Initial REMIC I
Certificates
Principal Balance
Regular Interest(s)
Principal Balance
-------------------------- ------------------------
-------------------------------
----------------------------------------
<S>
<C>
<C>
<C>
Class A-1
$
67,693,000
LA-1-1
$
3,982,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1-2
$
5,335,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1-3
$
31,725,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1-4
$
26,651,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class A-2
$
346,500,000 LA-2-1
$
9,690,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
<PAGE>
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class of
Corresponding
Sequential Pay
Original Class
REMIC I
Initial REMIC I
Certificates
Principal Balance
Regular Interest(s)
Principal Balance
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-2-2
$
36,124,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-2-3
$
35,474,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-2-4
$
34,527,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-2-5
$
33,892,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-2-6
$
188,826,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-2-7
$
7,967,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class A-3
$
47,661,000
LA-3
$
47,661,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class A-SB
$
100,000,000 LA-SB-1
$
87,654,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-SB-2
$
12,346,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class A-4
$
526,039,000 LA-4-1
$
14,571,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-4-2
$
25,824,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-4-3
$
24,738,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-4-4
$
56,508,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-4-5
$
22,522,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-4-6
$
25,019,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-4-7
$
356,857,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class A-1A
$
128,700,000 LA-1A-1
$
351,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1A-2
$
460,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1A-3
$
2,595,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1A-4
$
2,987,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1A-5
$
2,953,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1A-6
$
2,926,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
-2-
<PAGE>
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class of
Corresponding
Sequential Pay
Original Class
REMIC I
Initial REMIC I
Certificates
Principal Balance
Regular Interest(s)
Principal Balance
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1A-7
$
2,968,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1A-8
$
2,928,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1A-9
$
2,798,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1A-10
$
2,762,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1A-11
$
2,640,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1A-12
$
2,607,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1A-13
$
2,493,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1A-14
$
6,980,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1A-15
$
2,240,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1A-16
$
2,194,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1A-17
$
85,818,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class AM
$
173,800,000 LAM
$
173,800,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class AJ
$
115,142,000 LAJ
$
115,142,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class B
$
36,932,000
LB
$
36,932,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class C
$
15,208,000
LC-1
$
572,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LC-2
$
8,773,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LC-3
$
5,863,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class D
$
32,587,000
LD-1
$
3,721,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LD-2
$
10,332,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LD-3
$
9,914,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LD-4
$
8,620,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class E
$
19,553,000
LE-1
$
942,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
-3-
<PAGE>
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class of
Corresponding
Sequential Pay
Original Class
REMIC I
Initial REMIC I
Certificates
Principal Balance
Regular Interest(s)
Principal Balance
-------------------------- ------------------------
-------------------------------
----------------------------------------
LE-2
$
11,589,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LE-3
$
7,022,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class F
$
28,242,000
LF-1
$
14,652,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LF-2
$
13,590,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class G
$
17,380,000
LG-1
$
1,292,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LG-2
$
15,647,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LG-3
$
441,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class H
$
21,725,000
LH-1
$
6,803,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LH-2
$
14,922,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class J
$
6,518,000
LJ
$
6,518,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class K
$
8,690,000
LK-1
$
5,218,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LK-2
$
3,472,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class L
$
6,517,000
LL
$
6,517,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class M
$
4,345,000
LM
$
4,345,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class N
$
4,345,000
LN
$
4,345,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class P
$
8,690,000
LP
$
8,690,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class Q
$
21,725,951
LQ
$
21,725,951
-------------------------- ------------------------
-------------------------------
----------------------------------------
</TABLE>
The Non-Trust Loans (which term includes each B-Note Non-Trust
Loan,
each Westchester Subordinate Non-Trust Loan and the Westchester
Pari Passu
Non-Trust Loan) are not part of the Trust Fund, but each is secured
by the
same Mortgage on the same Mortgaged Property that also secures the
related
Trust Mortgage Loan (which is either an A-Note Trust Mortgage Loan
(in the
case of a B-Note Non-Trust Loan) or the Westchester Trust Mortgage
Loan (in
the case of a Westchester Subordinate Non-Trust Loan or the
Westchester Pari
Passu Non-Trust Loan) and is part of the Trust Fund). As and to the
extent
provided in the related Loan Combination Intercreditor Agreement,
each B-Note
Non-Trust Loan is generally subordinate to the related A-Note Trust
Mortgage
Loan. As and to the extent provided in the related Loan
Combination
Intercreditor Agreement, the Westchester Subordinate Non-Trust
Loans are
subordinate in right of payment and in other respects to, and
the
-4-
<PAGE>
Westchester Pari Passu Non-Trust Loan is pari passu in right of
payment and in
other respects with, the Westchester Trust Mortgage Loan. As and to
the extent
provided herein and in the related Loan Combination Intercreditor
Agreement,
the Non-Trust Loans will be serviced and administered in accordance
with this
Agreement. Amounts attributable to the Non-Trust Loans shall not be
assets of
the Trust Fund, and shall be owned by the related Non-Trust
Noteholders.
The portion of the Trust Fund consisting of (i) the Additional
Interest and the Additional Interest Account and (ii) amounts held
from time
to time in the Collection Account and/or the Additional Interest
Account that
represent Additional Interest shall be treated as a grantor trust
for federal
income tax purposes, and such grantor trust will be designated as
"Grantor
Trust Z". In addition, the portions of the Trust Fund consisting of
(i) the
Excess Servicing Strip and (ii) amounts held from time to time in
the
Collection Account that represent the Excess Servicing Strip shall
be treated
as a grantor trust for federal income tax purposes, and such
grantor trust
will be designated as "Grantor Trust E". As provided herein, the
Trustee shall
take all actions reasonably necessary to ensure that each of the
respective
portions of the Trust Fund consisting of Grantor Trust Z and
Grantor Trust E,
respectively, maintains its status as a "grantor trust" under
federal income
tax law and is not treated as part of REMIC I or REMIC II.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the
Trustee agree as
follows:
-5-
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context
otherwise
requires, shall have the meanings specified in this Article.
"30/360
Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"844 Front Street A-Note Trust Mortgage Loan": The A-Note Trust
Mortgage Loan identified as loan number 32 on the Mortgage Loan
Schedule and
as being secured by retail property located at 844 Front
Street.
"844 Front Street B-Note Non-Trust Loan": The B-Note Non-Trust
Loan
that relates to the 844 Front Street A-Note Trust Mortgage
Loan.
"A-Note Trust Mortgage Loan": Each of the Trust Mortgage Loans as
to
which the related Mortgage, which encumbers the related Mortgaged
Property,
also secures a B-Note Non-Trust Loan, which B-Note Non-Trust Loan
will not be
included in the Trust Fund. The A-Note Trust Mortgage Loans in the
Trust are
the 844 Front Street A-Note Trust Mortgage Loan, the Hilton Garden
Inn - Boca
Raton A-Note Trust Mortgage Loan, the Hilton Garden Inn - Fairfax
A-Note Trust
Mortgage Loan, the Hilton Garden Inn - Miramar A-Note Trust
Mortgage Loan and
the Prium Office Portfolio II A-Note Trust Mortgage Loan.
"A/B Loan Combination": Collectively, each A-Note Trust Mortgage
Loan
and the related B-Note Non-Trust Loan.
"Acceptable Insurance Default": With respect to any Mortgage
Loan,
any default under the related Mortgage Loan documents resulting
from: (i) the
exclusion of acts of terrorism from coverage under the related "all
risk"
casualty insurance policy maintained on the related Mortgaged
Property and
(ii) the related Mortgagor's failure to obtain insurance that
specifically
covers acts of terrorism, but, in each case, only if the Special
Servicer has
determined, in its reasonable judgment (exercised in accordance
with the
Servicing Standard), that (a) such insurance is not available at
commercially
reasonable rates and the subject hazards are not commonly insured
against by
prudent owners of similar real properties in similar locales (but
only by
reference to such insurance that has been obtained by such owners
at current
market rates) or (b) such insurance is not available at any rate.
Subject to
the Servicing Standard, in making any of the determinations
required in
subclause (a) or (b) of this definition, the Special Servicer shall
be
entitled to rely on the opinion of an insurance consultant.
"Accrued Certificate Interest": With respect to any Class of
Sequential Pay Certificates for any Distribution Date, one month's
interest at
the Pass-Through Rate applicable to such Class of Certificates for
such
Distribution Date, accrued on the related Class Principal Balance
outstanding
immediately prior to such Distribution Date; with respect to the
Class XC
Certificates for any Distribution Date, the aggregate of all
Accrued Component
Interest with respect to the Class XC
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Components for such Distribution Date; and, with respect to the
Class XP
Certificates for any Distribution Date, the aggregate of all
Accrued Component
Interest with respect to the Class XP Components for such
Distribution Date.
Accrued Certificate Interest shall be calculated on a 30/360 Basis
and, with
respect to any Class of Regular Certificates for any Distribution
Date, shall
be deemed to accrue during the calendar month preceding the month
in which
such Distribution Date occurs.
"Accrued Component Interest": With respect to each Class XC
Component
and Class XP Component for any Distribution Date, one month's
interest at the
Class XC Strip Rate (in the case of a Class XC Component) or Class
XP Strip
Rate (in the case of a Class XP Component), as applicable, with
respect to
such Component for such Distribution Date, accrued on the Component
Notional
Amount of such Component outstanding immediately prior to such
Distribution
Date. Accrued Component Interest shall be calculated on a 30/360
Basis and,
with respect to any Class XC Component or Class XP Component for
any
Distribution Date, shall be deemed to accrue during the calendar
month
preceding the month in which such Distribution Date occurs.
"Actual/360 Basis": The accrual of interest calculated on the
basis
of the actual number of days elapsed during any calendar month (or
other
applicable accrual period) in a year assumed to consist of 360
days.
"Actual/360 Mortgage Loan": Each Mortgage Loan that accrues
interest
on an Actual/360 Basis.
"Additional Exclusions": Exclusions in addition to those in the
insurance policies for the Mortgaged Properties on September 11,
2001.
"Additional Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal
balance of
such ARD Loan at the Additional Interest Rate (the payment of which
interest
shall, under the terms of such Mortgage Loan, be deferred until the
entire
outstanding principal balance of such ARD Loan has been paid),
together with
all interest, if any, accrued at the related Mortgage Rate plus the
related
Additional Interest Rate on such deferred interest. For purposes of
this
Agreement, Additional Interest on an ARD Loan or any successor REO
Loan with
respect thereto shall be deemed not to constitute principal or any
portion
thereof and shall not be added to the unpaid principal balance or
Stated
Principal Balance of such ARD Loan or successor REO Loan,
notwithstanding that
the terms of the related Mortgage Loan documents so permit. To the
extent that
any Additional Interest is not paid on a current basis, it shall be
deemed to
be deferred interest.
"Additional Interest Account": The segregated account or
accounts
(which may be a sub-account of the Distribution Account) created
and
maintained by the Trustee pursuant to Section 3.04(d) which shall
be entitled
"Wells Fargo Bank, N.A. as Trustee, in trust for the registered
holders of
Merrill Lynch Mortgage Trust 2005-MCP1, Commercial Mortgage
Pass-Through
Certificates, Series 2005-MCP1, Additional Interest Account". The
Additional
Interest Account shall not be an asset of either REMIC I or REMIC
II.
"Additional Interest Rate": With respect to any ARD Loan after
its
Anticipated Repayment Date, the incremental increase in the per
annum rate at
which such Mortgage Loan accrues interest after the Anticipated
Repayment Date
(in the absence of defaults) as calculated and as set forth in the
related
Mortgage Loan documents.
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"Additional Trust Fund Expense": Any Special Servicing Fees,
Workout
Fees, Principal Recovery Fees and, in accordance with Sections
3.03(d) and
4.03(d), interest payable to the Master Servicer, the Special
Servicer, the
Trustee and any Fiscal Agent on Advances (to the extent not offset
by Default
Charges or amounts otherwise payable to any related Non-Trust
Noteholder as
provided herein) and amounts payable to the Special Servicer in
connection
with inspections of Mortgaged Properties required pursuant to the
first
sentence of Section 3.12(a) (and not otherwise paid from Default
Charges or
amounts otherwise payable to any related Non-Trust Noteholder as
provided
herein), as well as (without duplication) any of the expenses of
the Trust
Fund that may be withdrawn (x) pursuant to any of clauses (vii)(B),
(ix),
(xi), (xii), (xiii), (xv) and (xix) of Section 3.05(a) out of
collections on
the related Trust Mortgage Loans or REO Properties or out of
general
collections on the Trust Mortgage Loans and any REO Properties on
deposit in
the Collection Account as indicated in such clauses of Section
3.05(a), (y)
pursuant to any of clauses (ix), (xi), (xii), (xiii) and (xvi) of
Section
3.05(e) out of collections on any Loan Combination or any related
Loan
Combination REO Property on deposit in the related Loan Combination
Custodial
Account as indicated in such clauses of Section 3.05(e) (but only
to the
extent that such collections would have otherwise been transferred
to the
Collection Account with respect to the related Trust Mortgage Loan
or any
successor Trust REO Loan with respect thereto), or (z) pursuant to
clause (ii)
or any of clauses (iv) through (vi) of Section 3.05(b) out of
general
collections on the Trust Mortgage Loans and any REO Properties on
deposit in
the Distribution Account; provided that for purposes of the
allocations
contemplated by Section 4.04 no such expense shall be deemed to
have been
incurred by the Trust Fund until such time as the payment thereof
is actually
made from the Collection Account, the related Loan Combination
Custodial
Account or the Distribution Account, as the case may be.
"Additional Yield and Prepayment Amount": With respect to any
Distribution Date and any Class of Sequential Pay Certificates
(other than any
Excluded Class) entitled to distributions of principal pursuant to
Section
4.01(a) on such Distribution Date, provided that a Yield
Maintenance Charge
and/or Prepayment Premium was actually collected during the related
Collection
Period on a Trust Mortgage Loan or a Trust REO Loan (for purposes
of this
definition, the "Prepaid Loan") in the Loan Group from which such
Class of
Certificates is receiving payments of principal on such
Distribution Date, the
product of (a) such Yield Maintenance Charge and/or Prepayment
Premium, net of
Workout Fees and Principal Recovery Fees payable therefrom and net
of any
portion of such Yield Maintenance Charges and/or Prepayment
Premiums applied
pursuant to Section 4.01(j) to reimburse one or more Classes of
Sequential Pay
Certificates in respect of Realized Losses and/or Additional Trust
Fund
Expenses previously allocated to such Class(es), multiplied by (b)
a fraction,
which in no event will be greater than one, the numerator of which
is equal to
the positive excess, if any, of (i) the Pass-Through Rate for the
subject
Class of Sequential Pay Certificates over (ii) the related Discount
Rate, and
the denominator of which is equal to the positive excess, if any,
of (i) the
Mortgage Rate for the Prepaid Loan over (ii) the related Discount
Rate,
multiplied by (c) a fraction, the numerator of which is equal to
the amount of
principal distributable on the subject Class of Sequential Pay
Certificates on
such Distribution Date (or, for so long as the Class A-4 and Class
A-1A
Certificates are outstanding, principal distributable on the
subject Class of
Sequential Pay Certificates on that Distribution Date from
collections on the
applicable Loan Group that includes the Prepaid Loan), pursuant to
Section
4.01(a), and the denominator of which is equal to the Principal
Distribution
Amount (or, so long as the Class A-4 and Class A-1A Certificates
are
outstanding, the Loan Group 1 Principal Distribution Amount or the
Loan Group
2 Principal Distribution Amount, as applicable, based on which Loan
Group
includes the Prepaid Loan) for such Distribution Date.
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"Advance": Any P&I Advance or Servicing Advance.
"Adverse
Grantor Trust Event": As defined in Section 10.02(e).
"Adverse Rating Event": With respect to each Rating Agency that
has
assigned a rating to any Class of rated Certificates, as of any
date of
determination, the qualification, downgrade or withdrawal of the
rating then
assigned to any such Class of rated Certificates by such Rating
Agency (or the
placing of any such Class of rated Certificates on "negative credit
watch"
status or "ratings outlook negative" status in contemplation of any
such
action with respect thereto).
"Adverse REMIC Event": As defined in Section 10.01(h).
"Affiliate": With respect to any specified Person, any other
Person
controlling or controlled by or under common control with such
specified
Person. For the purposes of this definition, "control" when used
with respect
to any specified Person means the power to direct the management
and policies
of such Person, directly or indirectly, whether through the
ownership of
voting securities, by contract or otherwise and the terms
"controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all
amendments
hereof and supplements hereto.
"Anticipated Repayment Date": For each ARD Loan, the date
specified
in the related Mortgage Note after which the rate per annum at
which interest
accrues on such ARD Loan will increase as specified in the related
Mortgage
Note (other than as a result of a default thereunder).
"Appraisal": With respect to any Mortgage Loan, an appraisal of
the
related Mortgaged Property from an Independent Appraiser selected
by the
Special Servicer or the Master Servicer, as applicable, prepared in
accordance
with 12 C.F.R. ss. 225.64 and conducted in accordance with the
standards of
the Appraisal Institute by an Independent Appraiser, which
Independent
Appraiser shall be advised to take into account the factors
specified in
Section 3.09(a), any available environmental, engineering or other
third-party
reports, and other factors that a prudent real estate appraiser
would
consider. The Master Servicer, the Special Servicer, the Trustee
and any
Fiscal Agent may conclusively rely on any Appraisal obtained in
accordance
with this Agreement.
"Appraisal Reduction Amount": With respect to any Required
Appraisal
Mortgage Loan, the excess, if any, of: (a) an amount, as calculated
by the
Master Servicer, based on information provided by the Special
Servicer and in
consultation with the Controlling Class Representative (or, in the
case of the
Westchester Loan Combination, the Westchester Controlling Party),
as of the
first Determination Date immediately succeeding the date on which
the Master
Servicer obtains knowledge of the subject Mortgage Loan becoming a
Required
Appraisal Mortgage Loan, if no new Required Appraisal (or letter
update or
internal valuation) is required, or otherwise the date on which a
Required
Appraisal (or letter update or internal valuation, if applicable)
is obtained,
and each anniversary of such Determination Date thereafter so long
as the
subject Mortgage Loan (or, if applicable, the Westchester Loan
Combination)
remains a Required Appraisal Mortgage Loan, equal to the sum
(without
duplication) of (i) the Stated Principal Balance of such Required
Appraisal
Mortgage Loan, (ii) to the extent not previously advanced by or on
behalf of
the Master Servicer, the Trustee or any Fiscal Agent, all unpaid
interest
accrued on such Required Appraisal Mortgage Loan through the most
recent Due
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<PAGE>
Date prior to such Determination Date at a per annum rate equal to
the related
Net Mortgage Rate (exclusive of any portion thereof that
constitutes
Additional Interest), (iii) all accrued but unpaid (from related
collections)
Master Servicing Fees and Special Servicing Fees with respect to
such Required
Appraisal Mortgage Loan and, without duplication, all accrued or
otherwise
incurred but unpaid (from related collections) Additional Trust
Fund Expenses
with respect to such Required Appraisal Mortgage Loan, (iv) all
related
unreimbursed Advances made by or on behalf of the Master Servicer,
the Special
Servicer, the Trustee or any Fiscal Agent with respect to such
Required
Appraisal Mortgage Loan, together with (A) interest on those
Advances and (B)
any related Unliquidated Advances, (v) all currently due and unpaid
real
estate taxes and unfunded improvement reserves and assessments,
insurance
premiums and, if applicable, ground rents with respect to the
related
Mortgaged Property and (vi) if applicable, in the case of the
Westchester Loan
Combination, to the extent known to the Master Servicer, any and
all interest
accrued on delinquency advances comparable to P&I Advances made
in respect of
the Westchester Pari Passu Non-Trust Loan (or any successor REO
Loan with
respect thereto) that is payable under any Westchester Pari Passu
Non-Trust
Loan Securitization Agreement; over (b) an amount equal to the sum
of (i) the
Required Appraisal Value and (ii) all escrows, reserves and letters
of credit
held as additional collateral held with respect to such Required
Appraisal
Mortgage Loan. If the Special Servicer fails to obtain a Required
Appraisal
(or letter update or internal valuation, if applicable) within the
time limit
described in Section 3.09(a), and such Required Appraisal (or
letter update or
internal valuation, if applicable) is required thereunder, then the
Appraisal
Reduction Amount for the related Required Appraisal Mortgage Loan
will equal
25% of the Stated Principal Balance of such Required Appraisal
Mortgage Loan,
to be adjusted upon receipt of a Required Appraisal or letter
update or
internal valuation, if applicable.
Notwithstanding anything herein to the contrary, the Westchester
Loan
Combination shall be treated as a single Required Appraisal
Mortgage Loan for
purposes of calculating an Appraisal Reduction Amount. Any
Appraisal Reduction
Amount with respect to the Westchester Loan Combination shall be
allocated
first to the Westchester Subordinate Non-Trust Loans, in reverse
order of
seniority (i.e., commencing with the most junior Westchester
Subordinate
Non-Trust Loan), in each case up to the outstanding principal
balance thereof,
and then to the Westchester Trust Mortgage Loan and the Westchester
Pari Passu
Non-Trust Loan, on a pro rata (based on their respective
outstanding principal
balances) and pari passu basis.
"Appraised Value": With respect to each Mortgaged Property and
REO
Property, the appraised value thereof based upon the most recent
Appraisal (or
letter update or internal valuation, if applicable) that is
contained in the
related Servicing File upon which the Master Servicer, the Special
Servicer,
the Trustee and any Fiscal Agent may conclusively rely.
"ARD Loan": Any Mortgage Loan that provides that if the
unamortized
principal balance thereof is not repaid on its Anticipated
Repayment Date,
such Mortgage Loan will accrue Additional Interest at the rate
specified in
the related Mortgage Note and the Mortgagor is required to apply
excess
monthly cash flow generated by the related Mortgaged Property to
the repayment
of the outstanding principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(c).
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"Assignment of Leases": With respect to any Mortgaged Property,
any
assignment of leases, rents and profits or similar document or
instrument
executed by the Mortgagor in connection with the origination of the
related
Mortgage Loan.
"Assumed Periodic Payment": With respect to any Balloon Loan for
its
Stated Maturity Date (provided that such Mortgage Loan has not been
paid in
full and no other Liquidation Event has occurred in respect thereof
on or
before such Stated Maturity Date) and for any related Due Date
thereafter as
of which such Mortgage Loan remains outstanding and part of the
Trust Fund
(or, in the case of a Non-Trust Loan for any Due Date, as of which
such
Mortgage Loan remains outstanding and the related Trust Mortgage
Loan remains
part of the Trust Fund), the Periodic Payment of principal and/or
interest
deemed to be due in respect thereof on such Due Date equal to the
Periodic
Payment that would have been due in respect of such Mortgage Loan
on such Due
Date if the related Mortgagor had been required to continue to pay
principal
in accordance with the amortization schedule, if any, and to accrue
interest
at the Mortgage Rate, in effect immediately prior to, and without
regard to
the occurrence of, its Stated Maturity Date. With respect to any
REO Loan, for
any related Due Date as of which the related REO Property or any
interest
therein remains part of the Trust Fund, the Periodic Payment of
principal
and/or interest deemed to be due in respect thereof on such Due
Date equal to
the Periodic Payment that would have been due in respect of the
predecessor
Mortgage Loan on such Due Date had it remained outstanding (or, if
the
predecessor Mortgage Loan was a Balloon Loan and such Due Date
coincides with
or follows what had been its Stated Maturity Date, equal to the
Assumed
Periodic Payment that would have been deemed due in respect of the
predecessor
Mortgage Loan on such Due Date had it remained outstanding).
"Authenticating Agent": Any authenticating agent appointed
pursuant
to Section 8.12 (or, in the absence of any such appointment, the
Trustee).
"Available Distribution Amount": With respect to any
Distribution
Date, an amount equal to (a) the sum of, without duplication, (i)
the
aggregate of the amounts on deposit in the Collection Account and
the
Distribution Account as of the close of business on the related
Determination
Date and the amounts collected by or on behalf of the Master
Servicer as of
the close of business on such Determination Date and required to be
deposited
in the Collection Account, which amounts shall, in the case of the
initial
Distribution Date, include the Closing Date Deposit, (ii) the
aggregate amount
of any P&I Advances made by the Master Servicer, the Trustee or
any Fiscal
Agent for distribution on the Certificates on such Distribution
Date pursuant
to Section 4.03, (iii) the aggregate amount transferred from the
Pool REO
Account (if established) and/or any Loan Combination Custodial
Account to the
Collection Account after the Determination Date in the month of
such
Distribution Date, but on or prior to the P&I Advance Date in
such month,
pursuant to Section 3.16(c) and/or Section 3.05(e), as applicable,
(iv) the
aggregate amount deposited by the Master Servicer in the Collection
Account
for such Distribution Date pursuant to Section 3.19(a) in
connection with
Prepayment Interest Shortfalls and Casualty/Condemnation Interest
Shortfalls,
and (v) for each Distribution Date occurring in March, the
aggregate of the
Interest Reserve Amounts in respect of each Interest Reserve Loan
deposited
into the Distribution Account pursuant to Section 3.05(c), net of
(b) the
portion of the amount described in clause (a) of this definition
that
represents one or more of the following: (i) collected Periodic
Payments that
are due on a Due Date following the end of the related Collection
Period, (ii)
any amounts payable or reimbursable to any Person from (A) the
Collection
Account pursuant to clauses (ii)-(xvi), (xix) and (xxi) of Section
3.05(a) or
(B) the Distribution Account pursuant to clauses (ii)-(vi) and (ix)
of Section
3.05(b), (iii) Prepayment Premiums and Yield Maintenance Charges,
(iv)
Additional Interest, (v) with
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respect to the Distribution Date occurring in February of each year
and in
January of each year that is not a leap year, the Interest Reserve
Amounts
with respect to the Interest Reserve Loans to be withdrawn from
the
Distribution Account and deposited in the Interest Reserve Account
in respect
of such Distribution Date and held for future distribution pursuant
to Section
3.04(c) and (vi) any amounts deposited in the Collection Account or
the
Distribution Account in error.
"B-Note Non-Trust Loan": With respect to each A-Note Trust
Mortgage
Loan, the other Mortgage Loan that (i) is not included in the Trust
Fund, (ii)
is subordinate in right of payment to such A-Note Trust Mortgage
Loan to the
extent set forth in the related Loan Combination Intercreditor
Agreement and
(iii) is secured by the same Mortgage on the same Mortgaged
Property as such
A-Note Trust Mortgage Loan. The B-Note Non-Trust Loans are the 844
Front
Street B-Note Non-Trust Loan, the Hilton Garden Inn - Boca Raton
B-Note
Non-Trust Loan, the Hilton Garden Inn - Fairfax B-Note Non-Trust
Loan, the
Hilton Garden Inn - Miramar B-Note Non-Trust Loan and the Prium
Office
Portfolio II B-Note Non-Trust Loan.
"B-Noteholder": Each holder of (i) the Mortgage Note for a
B-Note
Non-Trust Loan and (ii) the corresponding rights under the related
Loan
Combination Intercreditor Agreement.
"Balloon Loan": Any Mortgage Loan that by its original terms or
by
virtue of any modification entered into as of the Closing Date
provides for an
amortization schedule extending beyond its Stated Maturity
Date.
"Balloon Payment": With respect to any Balloon Loan as of any date
of
determination, the Scheduled Payment payable on the Stated Maturity
Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from
time
to time (Title 11 of the United States Code).
"Book-Entry Certificate": Any Certificate registered in the name
of
the Depository or its nominee.
"Book-Entry Non-Registered Certificate": Any Book-Entry
Certificate
that is a Non-Registered Certificate.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day
on
which banking institutions in New York, New York or the city in
which the
Corporate Trust Office of the Trustee (which as of the Closing Date
is
Minneapolis, Minnesota), or the offices of the Master Servicer
(which as of
the Closing Date is Overland Park, Kansas), or the offices of the
Special
Servicer (which as of the Closing Date is Overland Park, Kansas),
are located,
are authorized or obligated by law or executive order to remain
closed.
"Casualty/Condemnation Interest Shortfall": With respect to any
Trust
Mortgage Loan as to which a Casualty/Condemnation Principal
Prepayment was
received during any Collection Period and was applied to such
Mortgage Loan as
an unscheduled payment of principal prior to such Mortgage Loan's
Due Date in
such Collection Period, the amount of interest, to the extent not
collected
from the related Mortgagor, that would have accrued (at a rate per
annum equal
to the sum of (x) the related Net
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Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate)
on the
amount of such Casualty/Condemnation Principal Prepayment during
the period
commencing on the date as of which such Casualty/Condemnation
Principal
Prepayment was applied to such Mortgage Loan and ending on the day
immediately
preceding such Due Date, inclusive (net of any portion thereof that
would have
constituted Penalty Interest and Additional Interest, if
applicable).
"Casualty/Condemnation Principal Prepayment": With respect to
any
Trust Mortgage Loan, any amounts constituting Insurance Proceeds or
amounts
received in connection with the taking of all or a part of a
Mortgaged
Property by the exercise of the power of eminent domain or
condemnation, that
are applied as an unscheduled principal prepayment in accordance
with the
provisions of this Pooling and Servicing Agreement, in reduction of
the
principal balance of such Mortgage Loan.
"CERCLA": The Comprehensive Environmental Response, Compensation
and
Liability Act of 1980, as amended.
"Certificate": Any one of the Merrill Lynch Mortgage Trust
2005-MCP1,
Commercial Mortgage Pass-Through Certificates, Series 2005-MCP1, as
executed
by the Certificate Registrar and authenticated and delivered
hereunder by the
Authenticating Agent.
"Certificate Factor": With respect to any Class of Regular
Certificates as of any date of determination, a fraction, expressed
as a
decimal carried to at least eight places, the numerator of which is
the then
current Class Principal Balance, Class XC Notional Amount or Class
XP Notional
Amount, as applicable, of such Class of Regular Certificates and
the
denominator of which is the Original Class Principal Balance or
Original
Notional Amount, as the case may be, of such Class of Regular
Certificates.
"Certificate Notional Amount": With respect to any Class XC or
Class
XP Certificate, as of any date of determination, the then notional
amount of
such Certificate equal to the product of (a) the Percentage
Interest evidenced
by such Certificate, multiplied by (b) the then Class XC or Class
XP Notional
Amount, as applicable.
"Certificate Owner": With respect to a Book-Entry Certificate,
the
Person who is the beneficial owner of such Certificate as reflected
on the
books of the Depository or on the books of a Depository Participant
or on the
books of an indirect participating brokerage firm for which a
Depository
Participant acts as agent.
"Certificate Principal Balance": With respect to any Sequential
Pay
Certificate, as of any date of determination, the then outstanding
principal
amount of such Certificate equal to the product of (a) the
Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class
Principal
Balance of the Class of Certificates to which such Certificate
belongs.
"Certificate Register" and "Certificate Registrar": The
register
maintained and the registrar appointed pursuant to Section
5.02(a).
"Certificateholder": The Person in whose name a Certificate is
registered in the Certificate Register, except that (i) neither a
Disqualified
Organization nor a Disqualified Non-United States Tax Person shall
be Holder
of a Residual Certificate for any purpose hereof and, (ii) solely
for the
purposes of giving any consent, approval or waiver pursuant to this
Agreement
that relates to any of the
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Depositor, any Mortgage Loan Seller, the Master Servicer, the
Special
Servicer, the Trustee or any Fiscal Agent in its respective
capacity as such
(except with respect to amendments or waivers referred to in
Sections 7.04 and
11.01 hereof and any consent, approval or waiver required or
permitted to be
made by the Plurality Subordinate Certificateholder or the
Controlling Class
Representative and any election, removal or replacement of the
Special
Servicer or the Controlling Class Representative pursuant to
Section 6.09),
any Certificate registered in the name of the Depositor, any
Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee or
any Fiscal
Agent, as the case may be, or any Certificate registered in the
name of any of
their respective Affiliates, shall be deemed not to be outstanding,
and the
Voting Rights to which it is entitled shall not be taken into
account in
determining whether the requisite percentage of Voting Rights
necessary to
effect any such consent, approval or waiver that relates to it has
been
obtained. The Certificate Registrar shall be entitled to request
and
conclusively rely upon a certificate of the Depositor, the Master
Servicer or
the Special Servicer in determining whether a Certificate is
registered in the
name of an Affiliate of such Person. All references herein to
"Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners
as they
may indirectly exercise such rights through the Depository and the
Depository
Participants, except as otherwise specified herein; provided,
however, that
the parties hereto shall be required to recognize as a "Holder"
or
"Certificateholder" only the Person in whose name a Certificate is
registered
in the Certificate Register.
"Certification Parties": As defined in Section 8.16(b).
"Certifying Person": As defined in Section 8.16(b).
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Senior Certificates": The Class A-1, Class A-2, Class
A-3,
Class A-SB, Class A-4 and Class A-1A Certificates.
"Class A-1 Certificate": Any one of the Certificates with a
"Class
A-1" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class A-1A Certificate": Any one of the Certificates with a
"Class
A-1A" designation on the face thereof, substantially in the form of
Exhibit
A-1 attached hereto, and evidencing a "regular interest" in REMIC
II for
purposes of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a
"Class
A-2" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a
"Class
A-3" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class A-4 Certificate": Any one of the Certificates with a
"Class
A-4" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
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<PAGE>
"Class A-SB
Certificate": Any one of the Certificates with a "Class
A-SB" designation on the face thereof, substantially in the form of
Exhibit
A-1 attached hereto, and evidencing a "regular interest" in REMIC
II for
purposes of the REMIC Provisions.
"Class A-SB Planned Principal Balance": With respect to any
Distribution Date, the targeted Class Principal Balance of the
Class A-SB
Certificates for such date set forth on Exhibit S attached
hereto.
"Class AJ Certificate": Any one of the Certificates with a "Class
AJ"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class AM Certificate": Any one of the Certificates with a "Class
AM"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class
B"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class
C"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class
D"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class
E"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class
F"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class
G"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a "Class
H"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class
J"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
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<PAGE>
"Class K Certificate": Any one of the Certificates with a "Class
K"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a "Class
L"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class M
Certificate": Any one of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class N Certificate": Any one of the Certificates with a "Class
N"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class P
Certificate": Any one of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class Principal
Balance": The aggregate principal balance of any
Class of Sequential Pay Certificates outstanding from time to time.
As of the
Closing Date, the Class Principal Balance of each Class of
Sequential Pay
Certificates shall equal the Original Class Principal Balance
thereof. On each
Distribution Date, the Class Principal Balance of each Class of
Sequential Pay
Certificates shall be reduced by the amount of any distributions of
principal
made thereon on such Distribution Date pursuant to Section 4.01 or
9.01, as
applicable, and shall be further reduced by the amount of any
Realized Losses
and Additional Trust Fund Expenses allocated thereto on such
Distribution Date
pursuant to Section 4.04(a). The respective Class Principal
Balances of any
Classes of Sequential Pay Certificates to which there has been
allocated
unreimbursed Realized Losses and Additional Trust Fund Expenses
shall be
increased, in sequential order beginning with the most senior
affected Class
of Sequential Pay Certificates, by the amount of any recoveries
of
Nonrecoverable Advances and/or interest thereon which were
reimbursed and/or
paid in a prior Collection Period from the principal portion of
general
collections on the Mortgage Pool and which are included in the
Principal
Distribution Amount for the current Distribution Date; provided
that the Class
Principal Balance of any such Class of Sequential Pay Certificates
shall in no
event be increased by more than the amount of unreimbursed Realized
Losses and
Additional Trust Fund Expenses previously allocated thereto
(which
unreimbursed Realized Losses and Additional Trust Fund Expenses
shall be
reduced by the amount of the increase in such Class Principal
Balance); and
provided, further, that the aggregate increase in the Class
Principal Balances
of the respective Classes of Sequential Pay Certificates on any
Distribution
Date shall not exceed the excess, if any, of (i) the aggregate
Stated
Principal Balance of, and all Unliquidated Advances with respect
to, the
Mortgage Pool that will be outstanding immediately following such
Distribution
Date, over (ii) the aggregate of the Class Principal Balances of
the
respective Classes of Sequential Pay Certificates outstanding
immediately
following the distributions to be made on such Distribution Date,
but prior to
any such increase in any of those Class Principal Balances.
Distributions in
respect of a reimbursement of Realized Losses and Additional Trust
Fund
Expenses previously allocated to a Class of Sequential Pay
Certificates shall
not constitute distributions of principal and shall not result in
reduction of
the related Class Principal Balance.
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<PAGE>
"Class Q Certificate": Any one of the Certificates with a "Class
Q"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC Provisions.
"Class R-I Certificate": Any one of the Certificates with a
"Class
R-I" designation on the face thereof, substantially in the form of
Exhibit A-7
attached hereto, and evidencing the sole class of "residual
interests" in
REMIC I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a
"Class
R-II" designation on the face thereof, substantially in the form of
Exhibit
A-7 attached hereto, and evidencing the sole class of "residual
interests" in
REMIC II for purposes of the REMIC Provisions.
"Class X Certificates": The Class XC and Class XP Certificates.
"Class XC Certificate": Any one of the Certificates with a "Class
XC"
designation on the face thereof, substantially in the form of
Exhibit A-3
attached hereto, and evidencing multiple "regular interests" in
REMIC II for
purposes of the REMIC Provisions.
"Class XC Components": Each of the Components identified in the
table
in the definition of "Component" as being a Class XC Component.
"Class XC Notional Amount": With respect to the Class XC
Certificates
and any date of determination, the sum of the then Component
Notional Amounts
of all of the Class XC Components.
"Class XC Strip Rate": With respect to any Class XC Component
that
does not have a Corresponding Class XP Component, for any
Distribution Date, a
rate per annum equal to (i) the Weighted Average Net Mortgage
Pass-Through
Rate for such Distribution Date, minus (ii) the Pass-Through Rate
for the
Corresponding Certificates; and in the case of any Class XC
Component that has
a Corresponding Class XP Component, for any Distribution Date, a
rate per
annum equal to (i) for any Distribution Date occurring on or before
the Class
XP Termination Date for such Corresponding Class XP Component, (x)
the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date
minus (y) the sum of the Pass-Through Rate for the Corresponding
Certificates
for such Distribution Date and the Class XP Strip Rate for such
Corresponding
Class XP Component for such Distribution Date, and (ii) for any
Distribution
Date occurring after the Class XP Termination Date for such
Corresponding
Class XP Component, a rate per annum equal to (x) the Weighted
Average Net
Mortgage Pass-Through Rate for such Distribution Date, minus (y)
the
Pass-Through Rate for the Corresponding Certificates. In no event,
however,
shall any Class XC Strip Rate be less than zero.
"Class XP Certificate": Any one of the Certificates with a "Class
XP"
designation on the face thereof, substantially in the form of
Exhibit A-2
attached hereto, and evidencing multiple "regular interests" in
REMIC II for
purposes of the REMIC Provisions.
"Class XP Components": Each of the Components identified in the
table
in the definition of "Component" as being a Class XP Component.
"Class XP Notional Amount":
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<PAGE>
(i)
With
respect to any Distribution Date on or prior to the
Distribution Date in December 2005, the sum of (a) the lesser of
$63,711,000
and the Class Principal Balance of the Class A-1 Certificates
outstanding from
time to time, (b) the lesser of $128,349,000 and the Class
Principal Balance
of the Class A-1A Certificates outstanding from time to time, and
(c) the
Class Principal Balance of the Class A-2, Class A-3, Class A-SB,
Class A-4,
Class AM, Class AJ, Class B, Class C, Class D, Class E, Class F,
Class G,
Class H, Class J, Class K and Class L Certificates outstanding from
time to
time;
(ii)
With respect to
any Distribution Date after the Distribution Date in
December 2005 through and including the Distribution Date in June
2006, the
sum of (a) the lesser of $58,376,000 and the Class Principal
Balance of the
Class A-1 Certificates outstanding from time to time, (b) the
lesser of
$127,889,000 and the Class Principal Balance of the Class A-1A
Certificates
outstanding from time to time, and (c) the Class Principal Balance
of the
Class A-2, Class A-3, Class A-SB, Class A-4, Class AM, Class AJ,
Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K and
Class L Certificates outstanding from time to time;
(iii) With respect to
any Distribution Date after the Distribution Date
in June 2006 through and including the Distribution Date in
December 2006, the
sum of (a) the lesser of $26,651,000 and the Class Principal
Balance of the
Class A-1 Certificates outstanding from time to time, (b) the
lesser of
$125,294,000 and the Class Principal Balance of the Class A-1A
Certificates
outstanding from time to time, and (c) the Class Principal Balance
of the
Class A-2, Class A-3, Class A-SB, Class A-4, Class AM, Class AJ,
Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K and
Class L Certificates outstanding from time to time;
(iv)
With respect to
any Distribution Date after the Distribution Date in
December 2006 through and including the Distribution Date in June
2007, the
sum of (a) the lesser of $336,810,000 and the Class Principal
Balance of the
Class A-2 Certificates outstanding from time to time, (b) the
lesser of
$122,307,000 and the Class Principal Balance of the Class A-1A
Certificates
outstanding from time to time, and (c) the Class Principal Balance
of the
Class A-3, Class A-SB, Class A-4, Class AM, Class AJ, Class B,
Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K and Class
L
Certificates outstanding from time to time;
(v)
With
respect to any Distribution Date after the Distribution Date in
June 2007 through and including the Distribution Date in December
2007, the
sum of (a) the lesser of $300,686,000 and the Class Principal
Balance of the
Class A-2 Certificates outstanding from time to time, (b) the
lesser of
$119,354,000 and the Class Principal Balance of the Class A-1A
Certificates
outstanding from time to time, (c) the Class Principal Balance of
the Class
A-3, Class A-SB, Class A-4, Class AM, Class AJ, Class B, Class C,
Class D,
Class E, Class F, Class G, Class H and Class J Certificates
outstanding from
time to time, and (d) the lesser of $3,472,000 and the Class
Principal Balance
of the Class K Certificates outstanding from time to time;
(vi)
With respect to
any Distribution Date after the Distribution Date in
December 2007 through and including the Distribution Date in June
2008, the
sum of (a) the lesser of $265,212,000 and the Class Principal
Balance of the
Class A-2 Certificates outstanding from
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<PAGE>
time to time, (b) the lesser of $116,428,000 and the Class
Principal Balance
of the Class A-1A Certificates outstanding from time to time, (c)
the Class
Principal Balance of the Class A-3, Class A-SB, Class A-4, Class
AM, Class AJ,
Class B, Class C, Class D, Class E, Class F and Class G
Certificates
outstanding from time to time, and (d) the lesser of $14,922,000
and the Class
Principal Balance of the Class H Certificates outstanding from time
to time;
(vii) With respect to
any Distribution Date after the Distribution Date
in June 2008 through and including the Distribution Date in
December 2008, the
sum of (a) the lesser of $230,685,000 and the Class Principal
Balance of the
Class A-2 Certificates outstanding from time to time, (b) the
lesser of
$113,460,000 and the Class Principal Balance of the Class A-1A
Certificates
outstanding from time to time, (c) the Class Principal Balance of
the Class
A-3, Class A-SB, Class A-4, Class AM, Class AJ, Class B, Class C,
Class D,
Class E and Class F Certificates outstanding from time to time, and
(d) the
lesser of $16,088,000 and the Class Principal Balance of the Class
G
Certificates outstanding from time to time;
(viii) With respect to any Distribution Date after the Distribution
Date
in December 2008 through and including the Distribution Date in
June 2009, the
sum of (a) the lesser of $196,793,000 and the Class Principal
Balance of the
Class A-2 Certificates outstanding from time to time, (b) the
lesser of
$110,532,000 and the Class Principal Balance of the Class A-1A
Certificates
outstanding from time to time, (c) the Class Principal Balance of
the Class
A-3, Class A-SB, Class A-4, Class AM, Class AJ, Class B, Class C,
Class D,
Class E and Class F Certificates outstanding from time to time, and
(d) the
lesser of $441,000 and the Class Principal Balance of the Class G
Certificates
outstanding from time to time;
(ix) With respect to any
distribution date after the Distribution Date in
June 2009 through and including the Distribution Date in December
2009, the
sum of (a) the lesser of $7,967,000 and the Class Principal Balance
of the
Class A-2 Certificates outstanding from time to time, (b) the
lesser of
$107,734,000 and the Class Principal Balance of the Class A-1A
Certificates
outstanding from time to time, (c) the Class Principal Balance of
the Class
A-3, Class A-SB, Class A-4, Class AM, Class AJ, Class B, Class C,
Class D and
E Certificates outstanding from time to time, and (d) the lesser
of
$13,590,000 and the Class Principal Balance of the Class F
Certificates
outstanding from time to time;
(x)
With
respect to any distribution date after the Distribution Date in
December 2009 through and including the Distribution Date in June
2010, the
sum of (a) the lesser of $12,346,000 and the Class Principal
Balance of the
Class A-SB Certificates outstanding from time to time, (b) the
lesser of
$104,972,000 and the Class Principal Balance of the Class A-1A
Certificates
outstanding from time to time, (c) the Class Principal Balance of
the Class
A-4, Class AM, Class AJ, Class B, Class C and Class D Certificates
outstanding
from time to time, and (d) the lesser of $18,611,000 and the Class
Principal
Balance of the Class E Certificates outstanding from time to
time;
(xi)
With respect to
any Distribution Date after the Distribution Date in
June 2010 through and including the Distribution Date in December
2010, the
sum of (a) the lesser of $511,468,000 and the Class Principal
Balance of the
Class A-4 Certificates outstanding from time to time, (b) the
lesser of
$102,332,000 and the Class Principal Balance of the Class A-1A
Certificates
outstanding from time to time, (c) the Class Principal Balance of
the Class
AM,
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<PAGE>
Class AJ, Class B, Class C and Class D Certificates outstanding
from time to
time, and (d) the lesser of $7,022,000 and the Class Principal
Balance of the
Class E Certificates outstanding from time to time;
(xii) With respect to
any Distribution Date after the Distribution Date
in December 2010 through and including the Distribution Date in
June 2011, the
sum of (a) the lesser of $485,644,000 and the Class Principal
Balance of the
Class A-4 Certificates outstanding from time to time, (b) the
lesser of
$99,725,000 and the Class Principal Balance of the Class A-1A
Certificates
outstanding from time to time, (c) the Class Principal Balance of
the Class
AM, Class AJ, Class B and Class C Certificates outstanding from
time to time,
and (d) the lesser of $28,866,000 and the Class Principal Balance
of the Class
D Certificates outstanding from time to time;
(xiii) With respect to any Distribution Date after the Distribution
Date
in June 2011 through and including the Distribution Date in
December 2011 the
sum of (a) the lesser of $460,906,000 and the Class Principal
Balance of the
Class A-4 Certificates outstanding from time to time, (b) the
lesser of
$97,232,000 and the Class Principal Balance of the Class A-1A
Certificates
outstanding from time to time, (c) the Class Principal Balance of
the Class
AM, Class AJ, Class B and Class C Certificates outstanding from
time to time,
and (d) the lesser of $18,534,000 and the Class Principal Balance
of the Class
D Certificates outstanding from time to time;
(xiv) With respect to
any Distribution Date after the Distribution Date
in December 2011 through and including the Distribution Date in
June 2012 the
sum of (a) the lesser of $404,398,000 and the Class Principal
Balance of the
Class A-4 Certificates outstanding from time to time, (b) the
lesser of
$90,252,000 and the Class Principal Balance of the Class A-1A
Certificates
outstanding from time to time, (c) the Class Principal Balance of
the Class
AM, Class AJ, Class B and Class C Certificates outstanding from
time to time,
and (d) the lesser of $8,620,000 and the Class Principal Balance of
the Class
D Certificates outstanding from time to time;
(xv)
With respect to
any Distribution Date after the Distribution Date in
June 2012 through and including the Distribution Date in December
2012 the sum
of (a) the lesser of $381,876,000 and the Class Principal Balance
of the Class
A-4 Certificates outstanding from time to time, (b) the lesser of
$88,012,000
and the Class Principal Balance of the Class A-1A Certificates
outstanding
from time to time, (c) the Class Principal Balance of the Class AM,
Class AJ
and Class B Certificates outstanding from time to time, and (d) the
lesser of
$14,636,000 and the Class Principal Balance of the Class C
Certificates
outstanding from time to time;
(xvi) With respect to
any Distribution Date after the Distribution Date
in December 2012 through and including the Distribution Date in
June 2013, the
sum of (a) the lesser of $356,857,000 and the Class Principal
Balance of the
Class A-4 Certificates outstanding from time to time, (b) the
lesser of
$85,818,000 and the Class Principal Balance of the Class A-1A
Certificates
outstanding from time to time, (c) the Class Principal Balance of
the Class
AM, Class AJ and Class B Certificates outstanding from time to
time, and (d)
the lesser of $5,863,000 and the Class Principal Balance of the
Class C
Certificates outstanding from time to time; and
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<PAGE>
(xvii) With respect to any Distribution Date after the Distribution
Date
in June 2013, $0.
"Class XP Reference Rate": For any Distribution Date, the rate
per
annum corresponding to such Distribution Date on Exhibit L.
"Class XP Strip Rate": With respect to any Class XP Component for
any
Distribution Date, a rate per annum equal to (1) for any
Distribution Date
occurring on or before the Class XP Termination Date for such Class
XP
Component, the excess, if any, of (x) the lesser of (i) the
Weighted Average
Net Mortgage Pass-Through Rate for such Distribution Date and (ii)
the Class
XP Reference Rate for such Distribution Date, over (y) the
Pass-Through Rate
in effect for such Distribution Date for the Corresponding
Certificates
(provided that in no event shall any Class XP Strip Rate be less
than zero),
and (2) for any Distribution Date occurring after the Class XP
Termination
Date for such Class XP Component, 0% per annum.
"Class XP Termination Date": With respect to each Class XP
Component,
the Distribution Date that occurs in the month and year specified
in the table
in the definition of "Component".
"Class Z Certificate": Any one of the Certificates with a "Class
Z"
designation on the face thereof, substantially in the form of
Exhibit A-8
attached hereto, and evidencing a proportionate interest in Grantor
Trust Z.
"Closing Date": June 29, 2005.
"Closing Date Deposit": With respect to each of MLMLI and PNC, a
cash
amount to be deposited by each such Mortgage Loan Seller, as
applicable,
pursuant to the related Mortgage Loan Purchase Agreement, in
respect of each
Trust Mortgage Loan (that is one of the Trust Mortgage Loans
identified as
loan numbers 5, 13, 38, 67 and 102 on the Mortgage Loan Schedule)
sold by such
Mortgage Loan Seller to the Depositor that does not have its first
Scheduled
Payment due until August 2005, which cash amount represents the
aggregate
amount of interest that would have accrued during the entire month
of June
2005 at the related Net Mortgage Rate on the Cut-off Date Balance
of that
Trust Mortgage Loan. The Closing Date Deposit for each of the Trust
Mortgage
Loans identified in the preceding sentence is $353,112.24,
$137,027.97,
$52,120.88, $29,633.24 and $12,060.30, respectively. With respect
to
Countrywide, a cash amount to be deposited by such Mortgage Loan
Seller
pursuant to the related Mortgage Loan Purchase Agreement in respect
of the
Trust Mortgage Loan identified as loan number 29 (Tuscany at
McCormick Ranch)
on the Mortgage Loan Schedule, which cash amount represents a
portion of the
aggregate amount of interest that would have accrued during the
entire month
of June 2005 at the related Mortgage Rate on the Cut-off Date
Balance of such
Trust Mortgage Loan, which Closing Date Deposit is in the amount of
$8,444.76.
"Closing Date Deposit Mortgage Loan": Any Trust Mortgage Loan
(excluding the Trust Mortgage Loan identified as loan number 29
(Tuscany at
McCormick Ranch) on the Mortgage Loan Schedule) in respect of which
a Closing
Date Deposit is required to be made by the related Mortgage Loan
Seller
pursuant to the applicable Mortgage Loan Purchase Agreement.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither
such
association nor any successor remains in existence, "CMSA" shall be
deemed to
refer to such other association or organization as may exist
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<PAGE>
whose principal membership consists of servicers, trustees,
issuers, placement
agents and underwriters generally involved in the commercial
mortgage loan
securitization industry, which is the principal such association
or
organization in the commercial mortgage loan securitization
industry and one
of whose principal purposes is the establishment of industry
standards for
reporting transaction-specific information relating to
commercial
mortgage-backed pass-through certificates and commercial
mortgage-backed bonds
and the commercial mortgage loans and foreclosed properties
underlying or
backing them to investors holding or owning such certificates or
bonds, and
any successor to such other association or organization. If an
organization or
association described in one of the preceding sentences of this
definition
does not exist, "CMSA" shall be deemed to refer to such other
association or
organization as shall be selected by the Master Servicer and
reasonably
acceptable to the Trustee, the Special Servicer and the Controlling
Class
Representative.
"CMSA Advance Recovery Report": A report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Advance Recovery Report" available as of the Closing Date on the
CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA Bond Level File": The monthly report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Bond Level File" available as of the Closing Date on the CMSA
Website, or
such other form for the presentation of such information and
containing such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Collateral Summary File": A report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Collateral Summary File" available as of the Closing Date on the
CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA Comparative Financial Status Report": A report substantially
in
the form of, and containing the information called for in, the
downloadable
form of the "Comparative Financial Status Report" available as of
the Closing
Date on the CMSA Website, or such other form for the presentation
of such
information and containing such additional information as may from
time to
time be recommended by the CMSA for commercial mortgage-backed
securities
transactions generally.
"CMSA Delinquent Loan Status Report": A report substantially in
the
form of, and containing the information called for in, the
downloadable form
of the "Delinquent Loan Status Report" available as of the Closing
Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA Financial File": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the
"Financial File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
-22-
<PAGE>
"CMSA Historical Liquidation Report": A report substantially in
the
form of, and containing the information called for in, the
downloadable form
of the "Historical Liquidation Report" available as of the Closing
Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": A report substantially in the form of, and containing the
information
called for in, the downloadable form of the "Historical Loan
Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on
the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA Loan Level Reserve/LOC Report": A report substantially in
the
form of, and containing the information called for in, the
downloadable form
of the "Loan Level Reserve Report" on the CMSA Website, or in such
other form
for the presentation of such information and containing such
additional
information as may from time to time be recommended by the CMSA for
commercial
mortgage securities transactions generally.
"CMSA Loan Periodic Update File": The monthly report substantially
in
the form of, and containing the information called for in, the
downloadable
form of the "Loan Periodic Update File" available as of the Closing
Date on
the CMSA Website, or such other form for the presentation of such
information
and containing such additional information as may from time to time
be
recommended by the CMSA for commercial mortgage-backed securities
transactions
generally.
"CMSA Loan Setup File": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "Loan
Setup File" available as of the Closing Date on the CMSA Website,
or such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA NOI Adjustment Worksheet": A report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the
CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally,
and in any event, shall present the computations made in accordance
with the
methodology described in such form to "normalize" the full year net
operating
income, net cash flow and debt service coverage numbers used in the
other
reports required by this Agreement.
"CMSA Operating Statement Analysis Report": A report substantially
in
the form of, and containing the information called for in, the
downloadable
form of the "Operating Statement Analysis Report" available as of
the Closing
Date on the CMSA Website or in such other form for the presentation
of such
information and containing such additional information as may from
time to
time be recommended by the CMSA for commercial mortgage-backed
securities
transactions generally.
"CMSA Property File": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the
"Property File" available as of the Closing Date
-23-
<PAGE>
on the CMSA Website, or such other form for the presentation of
such
information and containing such additional information as may from
time to
time be recommended by the CMSA for commercial mortgage-backed
securities
transactions generally.
"CMSA Reconciliation of Funds Report": A report substantially in
the
form of, and containing the information called for in, the
downloadable form
of the "Reconciliation of Funds Report" available as of the Closing
Date on
the CMSA Website, or in such other form for the presentation of
such
information and containing such additional information as may from
time to
time be recommended by the CMSA for commercial mortgage-backed
securities
transactions generally.
"CMSA REO Status Report": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "REO
Status Report" available on the CMSA Website, or in such other form
for the
presentation of such information and containing such additional
information as
may from time to time be recommended by the CMSA for commercial
mortgage
securities transactions generally.
"CMSA Servicer Watch List": A report substantially in the form
of,
and containing the information called for in, the downloadable form
of the
"Servicer Watch List" available as of the Closing Date on the CMSA
Website, or
in such other form for the presentation of such information and
containing
such additional information as may from time to time be recommended
by the
CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA Special Servicer Loan File": A report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Special Servicer Loan File" on the CMSA Website, or in such other
form for
the presentation of such information and containing such
additional
information as may from time to time be recommended by the CMSA for
commercial
mortgage securities transactions generally.
"CMSA Website": The CMSA's Website located at "www.cmbs.org" or
such
other primary website as the CMSA may establish for dissemination
of its
report forms.
"Code": The Internal Revenue Code of 1986, as amended, and
applicable
temporary or final regulations of the U.S. Department of the
Treasury
promulgated thereunder.
"Collection Account": One or more segregated accounts created
and
maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the
Trustee in trust for the Certificateholders, which shall be
entitled: "Midland
Loan Services, Inc., as Master Servicer for Wells Fargo Bank, N.A.,
as
Trustee, on behalf of and in trust for the registered holders of
Merrill Lynch
Mortgage Trust 2005-MCP1, Commercial Mortgage Pass-Through
Certificates,
Series 2005-MCP1".
"Collection Period": Individually and collectively, as the
context
may require: with respect to any Distribution Date and each
Mortgage Loan and
any successor REO Loan, the period commencing on the day
immediately following
the related Determination Date for such Mortgage Loan for the
preceding
Distribution Date (or, in the case of the initial Distribution
Date,
commencing immediately following the Cut-off Date) and ending on
and including
the related Determination Date for such Mortgage Loan for the
subject
Distribution Date. For the purposes of this Agreement, with respect
to any
Distribution Date, the Collection Period that corresponds to that
Distribution
Date (including, for example, but without limitation, references to
"the
related Collection Period") shall mean the Collection
-24-
<PAGE>
Periods (determined in accordance with the preceding sentence)
ending in the
month in which such Distribution Date occurs that are applicable to
the
Merrill Trust Mortgage Loans and the PNC Trust Mortgage Loans
and/or the
Collection Periods (determined in accordance with the preceding
sentence)
ending in the month in which such Distribution Date occurs that are
applicable
to the Countrywide Trust Mortgage Loans, as applicable.
"Component": Any of the 66 components of the Class XC
Certificates
(the "Class XC Components") and the 60 components of the Class XP
Certificates
(the "Class XP Components") listed in the following table. The
following table
also sets forth the month and year in which the Class XP
Termination Date for
each Class XP Component occurs and the Corresponding Certificates
for each
Component.
<TABLE>
<CAPTION>
---------------------- ------------------- ------------------------
------------------------
Class Designation of
Class XC
Class XP
Class XP
Corresponding
Component
Component
Termination Date
Certificates
---------------------- ------------------- ------------------------
------------------------
<S>
<C>
<C>
<C>
XC-A-1-1
N/A
N/A
A-1
---------------------- ------------------- ------------------------
------------------------
XC-A-1-2
XP-A-1-2
December 2005
A-1
---------------------- ------------------- ------------------------
------------------------
XC-A-1-3
XP-A-1-3
June 2006
A-1
---------------------- ------------------- ------------------------
------------------------
XC-A-1-4
XP-A-1-4
December 2006
A-1
---------------------- ------------------- ------------------------
------------------------
XC-A-1A-1
N/A
N/A
A-1A
---------------------- ------------------- ------------------------
------------------------
XC-A-1A-2
XP-A-1A-2
December 2005
A-1A
---------------------- ------------------- ------------------------
------------------------
XC-A-1A-3
XP-A-1A-3
June 2006
A-1A
---------------------- ------------------- ------------------------
------------------------
XC-A-1A-4
XP-A-1A-4
December 2006
A-1A
---------------------- ------------------- ------------------------
------------------------
XC-A-1A-5
XP-A-1A-5
June 2007
A-1A
---------------------- ------------------- ------------------------
------------------------
XC-A-1A-6
XP-A-1A-6
December 2007
A-1A
---------------------- ------------------- ------------------------
------------------------
XC-A-1A-7
XP-A-1A-7
June 2008
A-1A
---------------------- ------------------- ------------------------
------------------------
XC-A-1A-8
XP-A-1A-8
December 2008
A-1A
---------------------- ------------------- ------------------------
------------------------
XC-A-1A-9
XP-A-1A-9
June 2009
A-1A
---------------------- ------------------- ------------------------
------------------------
XC-A-1A-10
XP-A-1A-10
December 2009
A-1A
---------------------- ------------------- ------------------------
------------------------
XC-A-1A-11
XP-A-1A-11
June 2010
A-1A
---------------------- ------------------- ------------------------
------------------------
XC-A-1A-12
XP-A-1A-12
December 2010
A-1A
---------------------- ------------------- ------------------------
------------------------
XC-A-1A-13
XP-A-1A-13
June 2011
A-1A
---------------------- ------------------- ------------------------
------------------------
XC-A-1A-14
XP-A-1A-14
December 2011
A-1A
---------------------- ------------------- ------------------------
------------------------
XC-A-1A-15
XP-A-1A-15
June 2012
A-1A
---------------------- ------------------- ------------------------
------------------------
XC-A-1A-16
XP-A-1A-16
December 2012
A-1A
---------------------- ------------------- ------------------------
------------------------
XC-A-1A-17
XP-A-1A-17
June 2013
A-1A
---------------------- ------------------- ------------------------
------------------------
XC-A-2-1
XP-A-2-1
December 2006
A-2
---------------------- ------------------- ------------------------
------------------------
XC-A-2-2
XP-A-2-2
June 2007
A-2
---------------------- ------------------- ------------------------
------------------------
XC-A-2-3
XP-A-2-3
December 2007
A-2
---------------------- ------------------- ------------------------
------------------------
XC-A-2-4
XP-A-2-4
June 2008
A-2
---------------------- ------------------- ------------------------
------------------------
XC-A-2-5
XP-A-2-5
December 2008
A-2
---------------------- ------------------- ------------------------
------------------------
XC-A-2-6
XP-A-2-6
June 2009
A-2
---------------------- ------------------- ------------------------
------------------------
XC-A-2-7
XP-A-2-7
December 2009
A-2
---------------------- ------------------- ------------------------
------------------------
XC-A-3
XP-A-3
December 2009
A-3
---------------------- ------------------- ------------------------
------------------------
XC-A-SB-1
XP-A-SB-1
December 2009
A-SB
---------------------- ------------------- ------------------------
------------------------
</TABLE>
-25-
<PAGE>
<TABLE>
<CAPTION>
---------------------- ------------------- ------------------------
------------------------
Class Designation of
Class XC
Class XP
Class XP
Corresponding
Component
Component
Termination Date
Certificates
---------------------- ------------------- ------------------------
------------------------
<S>
<C>
<C>
<C>
XC-A-SB-2
XP-A-SB-2
June 2010
A-SB
---------------------- ------------------- ------------------------
------------------------
XC-A-4-1
XP-A-4-1
June 2010
A-4
---------------------- ------------------- ------------------------
------------------------
XC-A-4-2
XP-A-4-2
December 2010
A-4
---------------------- ------------------- ------------------------
------------------------
XC-A-4-3
XP-A-4-3
June 2011
A-4
---------------------- ------------------- ------------------------
------------------------
XC-A-4-4
XP-A-4-4
December 2011
A-4
---------------------- ------------------- ------------------------
------------------------
XC-A-4-5
XP-A-4-5
June 2012
A-4
---------------------- ------------------- ------------------------
------------------------
XC-A-4-6
XP-A-4-6
December 2012
A-4
---------------------- ------------------- ------------------------
------------------------
XC-A-4-7
XP-A-4-7
June 2013
A-4
---------------------- ------------------- ------------------------
------------------------
XC-AM
XP-AM
June 2013
AM
---------------------- ------------------- ------------------------
------------------------
XC-AJ
XP-AJ
June 2013
AJ
---------------------- ------------------- ------------------------
------------------------
XC-B
XP-B
June 2013
B
---------------------- ------------------- ------------------------
------------------------
XC-C-1
XP-C-1
June 2012
C
---------------------- ------------------- ------------------------
------------------------
XC-C-2
XP-C-2
December 2012
C
---------------------- ------------------- ------------------------
------------------------
XC-C-3
XP-C-3
June 2013
C
---------------------- ------------------- ------------------------
------------------------
XC-D-1
XP-D-1
December 2010
D
---------------------- ------------------- ------------------------
------------------------
XC-D-2
XP-D-2
June 2011
D
---------------------- ------------------- ------------------------
------------------------
XC-D-3
XP-D-3
December 2011
D
---------------------- ------------------- ------------------------
------------------------
XC-D-4
XP-D-4
June 2012
D
---------------------- ------------------- ------------------------
------------------------
XC-E-1
XP-E-1
December 2009
E
---------------------- ------------------- ------------------------
------------------------
XC-E-2
XP-E-2
June
2010
E
---------------------- ------------------- ------------------------
------------------------
XC-E-3
XP-E-3
December 2010
E
---------------------- ------------------- ------------------------
------------------------
XC-F-1
XP-F-1
June 2009
F
---------------------- ------------------- ------------------------
------------------------
XC-F-2
XP-F-2
December 2009
F
---------------------- ------------------- ------------------------
------------------------
XC-G-1
XP-G-1
June 2008
G
---------------------- ------------------- ------------------------
------------------------
XC-G-2
XP-G-2
December 2008
G
---------------------- ------------------- ------------------------
------------------------
XC-G-3
XP-G-3
June 2009
G
---------------------- ------------------- ------------------------
------------------------
XC-H-1
XP-H-1
December 2007
H
---------------------- ------------------- ------------------------
------------------------
XC-H-2
XP-H-2
June 2008
H
---------------------- ------------------- ------------------------
------------------------
XC-J
XP-J
December 2007
J
---------------------- ------------------- ------------------------
------------------------
XC-K-1
XP-K-1
June 2007
K
---------------------- ------------------- ------------------------
------------------------
XC-K-2
XP-K-2
December
2007
K
---------------------- ------------------- ------------------------
------------------------
XC-L
XP-L
June 2007
L
---------------------- ------------------- ------------------------
------------------------
XC-M
N/A
N/A
M
---------------------- ------------------- ------------------------
------------------------
XC-N
N/A
N/A
N
---------------------- ------------------- ------------------------
------------------------
XC-P
N/A
N/A
P
---------------------- ------------------- ------------------------
------------------------
XC-Q
N/A
N/A
Q
---------------------- ------------------- ------------------------
------------------------
</TABLE>
"Component Notional Amount": With respect to each Component and
any
date of determination, an amount equal to the then REMIC I
Principal Balance
of its Corresponding REMIC I Regular Interest.
-26-
<PAGE>
"Controlling Class": As of any date of determination, the most
subordinate Class of Sequential Pay Certificates (based on the
payment
priorities set forth in Section 4.01(a)) that has a Class Principal
Balance
that is greater than 25% of the Original Class Principal Balance
thereof
(without considering any Appraisal Reduction Amounts); provided,
however, that
if no Class of Sequential Pay Certificates has a Class Principal
Balance that
satisfies such requirement, then the Controlling Class shall be the
most
subordinate outstanding Class of Sequential Pay Certificates (based
on the
payment priorities set forth in Section 4.01(a)) with a Class
Principal
Balance greater than zero. With respect to determining and
exercising the
rights of the Controlling Class, the Class A Senior Certificates
shall
collectively be deemed a single Class of Certificates.
"Controlling Class Representative": As defined in Section 3.25.
"Corporate Trust Office": The principal corporate trust office of
the
Trustee at which at any particular time its corporate trust
business with
respect to this Agreement shall be administered, which office at
the date of
the execution of this Agreement is located at, with respect to
certificate
transfer and payment services, Wells Fargo Center, Sixth Street and
Marquette
Avenue, Minneapolis, Minnesota 55479-0113, and with respect to
other trustee
and securities administration services, 9062 Old Annapolis Road,
Columbia,
Maryland 21045, Attention: CMBS Corporate Trust Services - Merrill
Lynch
Mortgage Trust 2005-MCP1, Commercial Mortgage Pass-Through
Certificates,
Series 2005-MCP1.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be a Specially
Serviced
Mortgage Loan in accordance with the definition of "Specially
Serviced
Mortgage Loan".
"Corresponding Certificates": With respect to any REMIC I
Regular
Interest, the Class of Sequential Pay Certificates for which such
REMIC I
Regular Interest is the Corresponding REMIC I Regular Interest or
one of the
Corresponding REMIC I Regular Interests. With respect to any
Component, the
Class of Sequential Pay Certificates designated as the
"Corresponding
Certificates" for such Component in the definition of
"Component".
"Corresponding Class XP Component": With respect to any Class
XC
Component, the Class XP Component (if any) that, with the
replacement of "XP-"
with "XC-" at the beginning of its designation, has the same
alphanumeric
designation as such Class XC Component.
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Class of Sequential
Pay
Certificates. With respect to any Component, the REMIC I Regular
Interest
that, with the replacement of "L" with "XC" or "XP", as applicable,
at the
beginning of its designation, has the same alphabetic or
alphanumeric
designation as such Component.
"Countrywide": Countrywide Commercial Real Estate Finance, Inc.,
a
California corporation, or its successor in interest.
"Countrywide Mortgage Loan Purchase Agreement": That certain
mortgage
loan purchase agreement, dated as of June 21, 2005, between the
Depositor and
Countrywide and relating to the transfer of the Countrywide Trust
Mortgage
Loans to the Depositor.
-27-
<PAGE>
"Countrywide Securities": Countrywide Securities Corporation, a
California corporation, or its successor in interest.
"Countrywide Trust Mortgage Loans": Each of the Mortgage Loans
transferred and assigned to the Depositor pursuant to the
Countrywide Mortgage
Loan Purchase Agreement.
"Crossed Loan": As defined in Section 2.03(a). The Mortgage
Loans
comprising a Loan Combination shall not be deemed to be Crossed
Loans for
purposes of this Agreement.
"Crossed Loan Group": As defined in Section 2.03(a).
"Custodian": A Person who is at any time appointed by the
Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage
Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an
Affiliate of
the Depositor or a Mortgage Loan Seller. If no such custodian has
been
appointed or if such custodian has been so appointed, but the
Trustee shall
have terminated such appointment, then the Trustee shall be the
Custodian.
"Cut-off Date": Individually and collectively, as the context
may
require: with respect to each Mortgage Loan with a Due Date in June
2005, the
related Due Date of such Mortgage Loan in June 2005; or, with
respect to any
Mortgage Loan that was originated in May or June 2005 and has the
Due Date of
its first Scheduled Payment in July 2005, June 1, 2005; or, with
respect to
any Mortgage Loan that was originated in June 2005 and has the Due
Date of its
first Scheduled Payment in August 2005, the date of
origination.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the
Cut-off Date,
after application of all unscheduled payments of principal received
on or
before such date and the principal component of all Periodic
Payments due on
or before such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Trust
Mortgage
Loan, as of any date of determination, the ratio of (x) the
annualized Net
Operating Income (before payment of any debt service on such
Mortgage Loan
generated by the related Mortgaged Property during the most
recently ended
period of not less than six months and not more than twelve months
for which
financial statements, if available (whether or not audited) have
been received
by or on behalf of the related Mortgage Loan Seller (prior to the
Closing
Date) or the Master Servicer or the Special Servicer (following the
Closing
Date), to (y) twelve times the amount of the Periodic Payment in
effect for
such Mortgage Loan as of such date of determination or, in the case
of the
Westchester Trust Mortgage Loan, twelve times the amount of the
aggregate
Periodic Payment in effect for the Westchester Trust Mortgage Loan
and the
Westchester Pari Passu Non-Trust Loan as of such date of
determination.
"Default Charges": Penalty Interest and/or late payment charges
that
are paid or payable, as the context may require, in respect of any
Mortgage
Loan or REO Loan.
"Defaulted Mortgage Loan": A Mortgage Loan: (i) that is (A)
delinquent 60 days or more in respect of a Periodic Payment (not
including the
Balloon Payment) or (B) delinquent in respect of its Balloon
Payment unless
(x) the related Mortgagor makes an Assumed Periodic Payment on each
Due Date
(commencing with the Due Date of such Balloon Payment) during the
period
contemplated in clause (y), and (y) the Master Servicer receives,
within 60
days after the Due Date of such Balloon
-28-
<PAGE>
Payment, written evidence from an institutional lender of such
lender's
binding commitment to refinance such Mortgage Loan within 120 days
after the
Due Date of such Balloon Payment and either such 120-day period has
not
expired or it has not been determined, in accordance with the
definition of
"Specially Serviced Mortgage Loan" that the refinancing could not
reasonably
be expected to occur, in either case such delinquency to be
determined (except
as otherwise provided above) without giving effect to any grace
period
permitted by the related Mortgage or Mortgage Note and without
regard to any
acceleration of payments under the related Mortgage and Mortgage
Note; or (ii)
as to which the Special Servicer has, by written notice to the
related
Mortgagor, accelerated the maturity of the indebtedness evidenced
by the
related Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": With respect to any Defeasance Loan,
the
United States government obligations required or permitted to be
pledged in
lieu of prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan which permits or requires
the
related Mortgagor (or permits the holder of such Mortgage Loan to
require the
related Mortgagor) to pledge Defeasance Collateral to such holder
in lieu of
prepayment.
"Deficient Valuation": With respect to any Mortgage Loan other than
a
B-Note Non-Trust Loan, a valuation by a court of competent
jurisdiction of the
Mortgaged Property in an amount less than the then outstanding
principal
balance of the Mortgage Loan (or, with respect to a Mortgage Loan
that is part
of the Westchester Loan Combination, in an amount less than the
then aggregate
outstanding principal balance of such Mortgage Loan and all other
Mortgage
Loans in such Loan Combination that are senior to, or pari passu
with, such
Mortgage Loan), which valuation results from a proceeding initiated
under the
Bankruptcy Code.
"Definitive Certificates": As defined in Section 5.03(a).
"Definitive Non-Registered Certificate": Any Definitive
Certificate
that is a Non-Registered Certificate.
"Depositor": Merrill Lynch Mortgage Investors, Inc. or its
successor
in interest.
"Depository": The Depository Trust Company, or any successor
depository hereafter named as contemplated by Section 5.03(c). The
nominee of
the initial Depository for purposes of registering those
Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository
shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the
Uniform
Commercial Code of the State of New York and a "clearing agency"
registered
pursuant to the provisions of Section 17A of the Securities
Exchange Act of
1934, as amended.
"Depository Participant": A broker, dealer, bank or other
financial
institution or other Person for whom from time to time the
Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date": For any Distribution Date, (i) with respect
to
the Merrill Trust Mortgage Loans (except the Westchester Trust
Mortgage Loan)
and the PNC Trust Mortgage Loans, the
-29-
<PAGE>
fourth Business Day prior to the Distribution Date, (ii) with
respect to the
Westchester Trust Mortgage Loan, the Westchester Early Remittance
Date and
(iii) with respect to the Countrywide Trust Mortgage Loans, subject
to the
proviso below, the 8th day of the month in which such Distribution
Date occurs
or, if such 8th day is not a Business Day, the next preceding
Business Day;
provided, that in the case of the Countrywide Trust Mortgage Loan
identified
as loan number 4 (ACP Woodland Park I) on the Mortgage Loan
Schedule, if the
8th day of a month is not a Business Day, the Determination Date
shall be the
next following Business Day. For the purposes of this Agreement,
with respect
to any Distribution Date, the Determination Date that corresponds
to that
Distribution Date (including, for example, but without limitation,
references
to "the related Determination Date") shall mean the Determination
Dates
(determined in accordance with the preceding sentence) occurring in
the same
month as such Distribution Date that are applicable to the Merrill
Trust
Mortgage Loans and the PNC Trust Mortgage Loans and/or the
Determination Dates
(determined in accordance with the preceding sentence) occurring in
the same
month as such Distribution Date that are applicable to the
Countrywide Trust
Mortgage Loans, as applicable.
"Determination Information": As defined in Section 3.18(b).
"Directly Operate": With respect to any REO Property, the
furnishing
or rendering of services to the tenants thereof, the management of
such REO
Property, the holding of such REO Property primarily for sale or
lease or the
performance of any construction work thereon, in each case other
than through
an Independent Contractor; provided, however, that the Trustee (or
the Special
Servicer or any Sub-Servicer on behalf of the Trustee) shall not be
considered
to Directly Operate an REO Property solely because the Trustee (or
the Special
Servicer or any Sub-Servicer on behalf of the Trustee) establishes
rental
terms, chooses tenants, enters into or renews leases, deals with
taxes and
insurance, or makes decisions as to repairs or capital expenditures
with
respect to such REO Property.
"Discount Rate": With respect to any prepaid Trust Mortgage Loan
or
Trust REO Loan for purposes of allocating any Prepayment Premium or
Yield
Maintenance Charge received thereon or with respect thereto among
the
respective Classes of the Sequential Pay Certificates (other than
any Excluded
Class thereof), an amount equal to the discount rate stated in the
Mortgage
Loan documents related to such Trust Mortgage Loan or Trust REO
Loan used in
calculating the related Prepayment Premium or Yield Maintenance
Charge;
provided that, if a discount rate is not stated thereon, the
"Discount Rate"
will be an amount equal to the yield (when compounded monthly) on
the U.S.
Treasury issue (primary issue) with a maturity date closest to the
maturity
date or Anticipated Repayment Date, as applicable, for such prepaid
Trust
Mortgage Loan or Trust REO Loan. In the event there are two or more
such U.S.
Treasury issues (a) with the same coupon, the issue with the lowest
yield
shall apply, and (b) with maturity dates equally close to the
maturity date or
Anticipated Repayment Date, as applicable, for the prepaid Trust
Mortgage Loan
or Trust REO Loan, the issue with the earliest maturity date shall
apply.
"Disqualified Non-United States Tax Person": With respect to
any
Residual Certificate, any Non-United States Tax Person or agent
thereof other
than: (1) a Non-United States Tax Person that (a) holds such
Residual
Certificate and, for purposes of Treasury regulations Section
1.860G-3(a)(3),
is subject to tax under Section 882 of the Code, (b) certifies that
it
understands that, for purposes of Treasury regulations Section
1.860E-1(c)(4)(ii), as a holder of such Residual Certificate for
United States
federal income tax purposes, it may incur tax liabilities in excess
of any
cash flows generated by such Residual Certificate and intends to
pay taxes
associated with holding such Residual Certificate, and
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(c) has furnished the Transferor and the Trustee with an effective
IRS Form
W-8ECI or successor form and has agreed to update such form as
required under
the applicable Treasury regulations; or (2) a Non-United States Tax
Person
that has delivered to the Transferor, the Trustee and the
Certificate
Registrar an opinion of nationally recognized tax counsel to the
effect that
(x) the Transfer of such Residual Certificate to it is in
accordance with the
requirements of the Code and the regulations promulgated thereunder
and (y)
such Transfer of such Residual Certificate will not be disregarded
for United
States federal income tax purposes.
"Disqualified Organization": (i) the United States, any State
or
political subdivision thereof, a foreign government, an
international
organization, or any agency or instrumentality of any of the
foregoing, (ii)
any organization (other than certain farmers' cooperatives
described in
Section 521 of the Code) that is exempt from the tax imposed by
Chapter 1 of
the Code (including the tax imposed by Section 511 of the Code on
unrelated
business taxable income), (iii) rural electric and telephone
cooperatives
described in Section 1381 of the Code and (iv) any other Person so
designated
by the Trustee or the REMIC Administrator based upon an Opinion of
Counsel
that the holding of an Ownership Interest in a Residual Certificate
by such
Person may cause the Trust or any Person having an Ownership
Interest in any
Class of Certificates (other than such Person) to incur a liability
for any
federal tax imposed under the Code that would not otherwise be
imposed but for
the Transfer of an Ownership Interest in a Residual Certificate to
such
Person. The terms "United States", "State" and "international
organization"
shall have the meanings set forth in Section 7701 of the Code or
successor
provisions.
"Disqualified Partnership": Any domestic entity classified as a
partnership under the Code, if any of its beneficial owners are
Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest": With respect to any Class
of
Regular Certificates for any Distribution Date, the Accrued
Certificate
Interest in respect of such Class of Certificates for such
Distribution Date,
reduced (other than with respect to the Class X Certificates) (to
not less
than zero) by the product of (a) any Net Aggregate Prepayment
Interest
Shortfall for such Distribution Date, multiplied by (b) a fraction,
expressed
as a decimal, the numerator of which is the Accrued Certificate
Interest in
respect of such Class of Certificates for such Distribution Date,
and the
denominator of which is the aggregate Accrued Certificate Interest
in respect
of all the Classes of Sequential Pay Certificates for such
Distribution Date;
provided that, if the aggregate Class Principal Balance of the
Sequential Pay
Certificates is reduced as a result of a Realized Loss caused by a
diversion
of principal collections on the Mortgage Pool to reimburse
Nonrecoverable
Advances and/or pay interest thereon as contemplated by Section
1.02, and if
there is a subsequent recovery of such amounts that results in
the
reinstatement of the Class Principal Balance of any one or more
Classes of
Sequential Pay Certificates as provided in the definition of "Class
Principal
Balance", then the amount of Distributable Certificate Interest
with respect
to each Class of Regular Certificates for the next succeeding
Distribution
Date shall be increased by the amount of any and all additional
Distributable
Certificate Interest that would have been payable with respect to
the subject
Class of Regular Certificates if such diversion of principal and
the
corresponding allocation of a Realized Loss (up to the amount of
the
reinstated balances) had not occurred.
"Distribution Account": The segregated account or accounts
created
and maintained by the Trustee pursuant to Section 3.04(b) which
shall be
entitled "Wells Fargo Bank, N.A., as Trustee, in trust for the
registered
holders of Merrill Lynch Mortgage Trust 2005-MCP1, Commercial
Mortgage
Pass-Through Certificates, Series 2005-MCP1".
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"Distribution Date": During any given month, the 12th day of
such
month, or if the 12th day is not a Business Day, the next
succeeding Business
Day, commencing in July 2005.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior to
its
Stated Maturity Date, the day of the month set forth in the related
Mortgage
Note on which each Periodic Payment on such Mortgage Loan is
scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date,
the day of
the month set forth in the related Mortgage Note on which each
Periodic
Payment on such Mortgage Loan had been scheduled to be first due;
and (iii)
any REO Loan, the day of the month set forth in the related
Mortgage Note on
which each Periodic Payment on the related Mortgage Loan had been
scheduled to
be first due.
"Eligible Account": Any of (i) an account maintained with a
federal
or state chartered depository institution or trust company, and (a)
with
respect to deposits held for 30 days or more in such account, the
long-term
deposit or unsecured debt obligations of which are rated at least
"AA" by S&P
(or "A-" provided the short-term unsecured debt obligations are
rated at least
"A-1" by S&P), "Aa3" by Moody's (if then rated by Moody's) and,
if applicable,
at least "AA-" by Fitch (if then rated by Fitch) (or, with respect
to any such
Rating Agency, such lower rating as will not result in an Adverse
Rating Event
or a Westchester Related MBS Adverse Rating Event, as evidenced in
writing by
the applicable Rating Agency), at any time such funds are on
deposit therein,
or (b) with respect to deposits held for less than 30 days in such
account,
the short-term deposits of which are rated at least "A-1" by
S&P, "P-1" by
Moody's (if then rated by Moody's) and, if applicable, at least
"F-1" by Fitch
(if then rated by Fitch) (or, with respect to any such Rating
Agency, such
lower rating as will not result in an Adverse Rating Event or a
Westchester
Related MBS Adverse Rating Event) as evidenced in writing by the
applicable
Rating Agency at any time such funds are on deposit therein, (ii)
an account
or accounts maintained with PNC so long as PNC (1) has a long-term
unsecured
debt rating of at least "A" and a short-term rating of at least
"A-1" from
S&P, (2) has a long-term unsecured debt rating of at least "A1"
and a
short-term rating of at least "P-1" from Moody's and (3) if
applicable, has a
long term unsecured debt rating of at least "A" and a short term
rating of at
least "F-1" from Fitch, (iii) a segregated trust account or
accounts
maintained with a federal or state chartered depository institution
or trust
company acting in its fiduciary capacity, which, in the case of a
state
chartered depository institution or trust company, is subject to
regulations
regarding fiduciary funds on deposit therein substantially similar
to 12
C.F.R. ss. 9.10(b), having in either case a combined capital and
surplus of at
least $50,000,000 and subject to supervision or examination by
federal or
state authority, or (iv) any other account the use of which would
not, in and
of itself, cause an Adverse Rating Event or a Westchester Related
MBS Adverse
Rating Event, as confirmed in writing by each Rating Agency. For
purposes of
the foregoing, the ratings from Fitch shall only be applicable with
respect to
an account that relates solely to the Westchester Loan Combination
at any time
one or more classes of any Westchester Pari Passu Non-Trust Loan
Related MBS
is rated by Fitch.
"Environmental Assessment": A "Phase I assessment" as described
in,
and meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily
Guide or
any successor provisions covering the same subject matter in the
case of a
Specially Serviced Mortgage Loan as to which the related Mortgaged
Property is
multifamily property or (ii) the American Society for Testing and
Materials in
the case of
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Specially Serviced Mortgage Loan as to which the related Mortgaged
Property is
not multifamily property.
"ERISA": The Employee Retirement Income Security Act of 1974,
as
amended.
"Escrow Payment": Any payment received by the Master Servicer or
the
Special Servicer for the account of any Mortgagor for application
toward the
payment of real estate taxes, assessments, insurance premiums,
ground rents
(if applicable) and other similar items in respect of the related
Mortgaged
Property.
"Event of Default": One or more of the events described in
Section
7.01(a).
"Exchange
Act": Securities Exchange Act of 1934, as amended.
"Excess Servicing Strip": With respect to each Mortgage Loan and
REO
Loan, that portion of the Master Servicing Fee for such Mortgage
Loan or REO
Loan that represents interest accrued at the related Excess
Servicing Strip
Rate.
"Excess Servicing Strip Rate": With respect to each Mortgage Loan
and
REO Loan, the excess of (x) the Master Servicing Fee Rate for such
Mortgage
Loan or REO Loan over (y) the sum of (i) 0.01% (one basis point)
per annum,
and (ii) with respect to any Mortgage Loan or REO Loan that is not
primary
serviced by Midland, the primary servicing fee rate, if any, for
such Mortgage
Loan or REO Loan; provided that the Excess Servicing Strip Rate
with respect
to each Mortgage Loan and REO Loan shall be subject to reduction by
the
Trustee pursuant to Section 3.11(a).
"Excluded Class": Any Class of Sequential Pay Certificates other
than
the Class A-1, Class A-2, Class A-3, Class A-SB, Class A-4, Class
A-1A, Class
AM, Class AJ, Class B, Class C, Class D, Class E, Class F, Class G
and Class H
Certificates.
"Exemption": Either of Department of Labor Prohibited
Transaction
Exemption ("PTE") 90-29 (as amended by PTE 97-34, PTE 2000-58 and
PTE 2002-41)
or PTE 2000-55 (as amended by PTE 2000-58 and PTE 2002-41), as each
may be
amended from time to time, or any successor thereto, all as issued
by the U.S.
Department of Labor.
"Exemption-Favored Party": Any of (i) MLPF&S or Countrywide
Securities, (ii) any Person directly or indirectly, through one or
more
intermediaries, controlling, controlled by or under common control
with MLPF&S
or Countrywide Securities, and (iii) any member of any underwriting
syndicate
or selling group of which any Person described in clauses (i) or
(ii) is a
manager or co-manager with respect to a Class of Investment
Grade
Certificates.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any
successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Specially Serviced Mortgage Loan,
Corrected
Mortgage Loan or REO Property (other than a Mortgage Loan or REO
Property, as
the case may be, that was purchased or replaced by any of the
Mortgage Loan
Sellers pursuant to the applicable Mortgage Loan Purchase
Agreement, or that
was
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purchased by the Plurality Subordinate Certificateholder or the
Special
Servicer or any assignee of the foregoing pursuant to Section 3.18,
by the
related B-Noteholder (in the case of an A-Note Trust Mortgage Loan)
or by the
Westchester Pari Passu Noteholder or a Westchester Subordinate
Noteholder (in
the case of the Westchester Trust Mortgage Loan) pursuant to the
related Loan
Combination Intercreditor Agreement or by the Master Servicer, the
Special
Servicer or the Plurality Subordinate Certificateholder pursuant to
Section
9.01) that there has been a recovery of all Insurance Proceeds,
Liquidation
Proceeds, REO Revenues and other payments or recoveries that the
Special
Servicer has determined, in accordance with the Servicing Standard,
will be
ultimately recoverable (without regard to any Westchester Control
Retention
Collateral).
"Fiscal Agent": A Person who is at any time appointed by the
Trustee
pursuant to Section 8.18 to act as fiscal agent.
"Fiscal Agent Agreement": As defined in Section 8.18.
"Fitch": Fitch, Inc. or its successor in interest. If neither
Fitch
nor any successor remains in existence, "Fitch" shall be deemed to
refer to
such other nationally recognized statistical rating agency or other
comparable
Person that replaces it in such capacity under a Westchester Pari
Passu
Non-Trust Loan Securitization Agreement, and specific ratings of
Fitch herein
referenced shall be deemed to refer to the equivalent ratings of
the party so
designated.
"FNMA": Federal National Mortgage Association or any successor.
"Form 8-K": Form 8-K under the Exchange Act and/or any successor
or
equivalent form(s) adopted by the Securities and Exchange
Commission.
"Form 8-K Current Report": A current report on Form 8-K.
"Form 10-K": Form 10-K under the Exchange Act and/or any successor
or
equivalent form(s) adopted by the Securities and Exchange
Commission.
"Form 10-K Annual Report": An annual report on Form 10-K.
"Gain-on-Sale Proceeds": With respect to any Trust Mortgage Loan
or
Trust REO Loan, the excess, if any, of (i) any and all Liquidation
Proceeds
collected with respect to such Mortgage Loan or the related REO
Property, as
the case may be, net of any related liquidation expenses, P&I
Advances,
Servicing Advances, Principal Recovery Fees, interest on Advances,
Master
Servicing Fees, Special Servicing Fees and Additional Trust Fund
Expenses, and
if applicable, further net of any portion of such Liquidation
Proceeds payable
to the related Non-Trust Noteholder(s) (if any), over (ii) the
Purchase Price
for such Trust Mortgage Loan or Trust REO Loan, as the case may be,
on the
date on which such Liquidation Proceeds were received.
"Gain-on-Sale Reserve Account": A segregated custodial account
(which
may be a sub-account of the Distribution Account) created and
maintained by
the Trustee pursuant to Section 3.04(f) in trust for the
Certificateholders,
which shall be entitled "Wells Fargo Bank, N.A., as Trustee, in
trust for the
registered holders of Merrill Lynch Mortgage Trust 2005-MCP1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MCP1, Gain-on-Sale
Reserve
Account".
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"Global Certificate": With respect to any Class of Book-Entry
Non-Registered Certificates, the related Rule 144A Global
Certificate.
"Grantor Trust E": That certain "grantor trust" (within the
meaning
of the Grantor Trust Provisions), the assets of which consist of
the Excess
Servicing Strip with respect to the Mortgage Loans and any
successor REO Loans
and amounts held from time to time in the Collection Account that
represent
the Excess Servicing Strip.
"Grantor Trust E Assets": The segregated pool of assets of
Grantor
Trust E.
"Grantor Trust Provisions": Subpart E of Subchapter J of the
Code.
"Grantor Trust Z": That certain "grantor trust" (within the
meaning
of the Grantor Trust Provisions), the assets of which consist of
any
Additional Interest with respect to the Trust ARD Loans and any
successor
Trust REO Loans after their respective Anticipated Repayment Dates
and amounts
held from time to time in the Collection Account and/or the
Additional
Interest Account that represent Additional Interest.
"Grantor Trust Z Assets": The segregated pool of assets of
Grantor
Trust Z.
"Ground Lease": With respect to any Mortgage Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged
Property or space
lease within such Mortgaged Property, the lease agreement creating
such
leasehold interest.
"Group 1 Mortgage Loan": Any Trust Mortgage Loan identified on
the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Trust Mortgage Loan identified on
the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants,
chemicals, wastes, or substances, including, without limitation,
those so
identified pursuant to CERCLA or any other federal, state or
local
environmental related laws and regulations now existing or
hereafter enacted,
and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls ("PCBs"),
radon gas,
petroleum and petroleum products and urea formaldehyde.
"Hilton Garden Inn - Boca Raton A-Note Trust Mortgage Loan":
The
A-Note Trust Mortgage Loan identified as loan number 48 on the
Mortgage Loan
Schedule and as being secured by the Hilton Garden Inn - Boca
Raton.
"Hilton Garden Inn - Boca Raton B-Note Non-Trust Loan": The
B-Note
Non-Trust Loan that relates to the Hilton Garden Inn - Boca Raton
A-Note Trust
Mortgage Loan.
"Hilton Garden Inn - Fairfax A-Note Trust Mortgage Loan": The
A-Note
Trust Mortgage Loan identified as loan number 23 on the Mortgage
Loan Schedule
and as being secured by the Hilton Garden Inn - Fairfax.
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"Hilton Garden Inn - Fairfax B-Note Non-Trust Loan": The B-Note
Non-Trust Loan that relates to the Hilton Garden Inn - Fairfax
A-Note Trust
Mortgage Loan.
"Hilton Garden Inn - Miramar A-Note Trust Mortgage Loan": The
A-Note
Trust Mortgage Loan identified as loan number 51 on the Mortgage
Loan Schedule
and as being secured by the Hilton Garden Inn - Miramar.
"Hilton Garden Inn - Miramar B-Note Non-Trust Loan": The B-Note
Non-Trust Loan that relates to the Hilton Garden Inn - Miramar
A-Note Trust
Mortgage Loan.
"Holder": A Certificateholder.
"Impound Reserve": As defined in Section 3.16(c).
"Independent": When used with respect to any specified Person,
any
such Person who (i) is in fact independent of the Depositor, the
Mortgage Loan
Sellers, the Master Servicer, the Special Servicer, the Controlling
Class
Representative, the Trustee, any Fiscal Agent and any and all
Affiliates
thereof (and, with respect to any Loan Combination, any of the
related
Non-Trust Noteholder(s) and any and all Affiliates thereof), (ii)
does not
have any direct financial interest in or any material indirect
financial
interest in any of the Depositor, the Mortgage Loan Sellers, the
Master
Servicer, the Special Servicer, the Controlling Class
Representative, the
Trustee, any Fiscal Agent or any Affiliate thereof (or, with
respect to any
Loan Combination, any of the related Non-Trust Noteholder(s) or any
Affiliate
thereof), and (iii) is not connected with the Depositor, the
Mortgage Loan
Sellers, the Master Servicer, the Controlling Class Representative,
the
Special Servicer, the Trustee, any Fiscal Agent or any Affiliate
thereof (or,
with respect to any Loan Combination, any of the related
Non-Trust
Noteholder(s) or any Affiliate thereof) as an officer, employee,
promoter,
underwriter, trustee, partner, director or Person performing
similar
functions; provided, however, that a Person shall not fail to be
Independent
of the Depositor, any Mortgage Loan Seller, the Master Servicer,
the
Controlling Class Representative, the Special Servicer, the
Trustee, any
Fiscal Agent or any Affiliate thereof (or, with respect to any
Loan
Combination, any of the related Non-Trust Noteholder(s) or any
Affiliate
thereof) merely because such Person is the beneficial owner of 1%
or less of
any class of securities issued by the Depositor, any Mortgage Loan
Seller, the
Master Servicer, the Special Servicer, the Controlling Class
Representative,
the Trustee, any Fiscal Agent or any Affiliate thereof (or, with
respect to
any Loan Combination, any of the related Non-Trust Noteholder(s) or
any
Affiliate thereof), as the case may be.
"Independent Appraiser": An Independent professional real
estate
appraiser who is a member in good standing of the Appraisal
Institute, and, if
the State in which the subject Mortgaged Property is located
certifies or
licenses appraisers, certified or licensed in such State, and in
each such
case, who has a minimum of five years experience in the subject
property type
and market.
"Independent Contractor": (a) Any Person that would be an
"independent contractor" with respect to REMIC I within the meaning
of Section
856(d)(3) of the Code if REMIC I were a real estate investment
trust (except
that the ownership test set forth in that Section shall be
considered to be
met by any Person that owns, directly or indirectly, 35% or more of
any Class
of Certificates, or such other interest in any Class of
Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the
Master
Servicer, the Special Servicer, the Trustee, any Fiscal Agent or
the Trust
Fund, delivered to the Trustee (and, if a Loan Combination is
involved, to the
related Non-Trust Noteholder), provided that (i) such REMIC does
not receive
or derive any income from such Person and (ii) the
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relationship between such Person and such REMIC is at arm's length,
all within
the meaning of Treasury regulations Section 1.856-4(b)(5), or (b)
any other
Person upon receipt by the Trustee (and, if a Loan Combination is
involved, by
the related Non-Trust Noteholder(s)) of an Opinion of Counsel,
which shall be
at no expense to the Master Servicer, the Special Servicer, the
Trustee, any
Fiscal Agent or the Trust Fund, to the effect that the taking of
any action in
respect of any REO Property by such Person, subject to any
conditions therein
specified, that is otherwise herein contemplated to be taken by an
Independent
Contractor will not cause such REO Property to cease to qualify
as
"foreclosure property" within the meaning of Section 860G(a)(8) of
the Code
for purposes of Section 860D(a) of the Code, or cause any income
realized in
respect of such REO Property to fail to qualify as Rents from Real
Property,
due to such Person's failure to be treated as an Independent
Contractor.
"Initial Purchaser": Each of MLPF&S and Countrywide
Securities.
"Institutional Accredited Investor" or "IAI": An "accredited
investor" as defined in any of paragraphs (1), (2), (3) and (7) of
Rule 501(a)
under the Securities Act or any entity in which all of the equity
owners come
within such paragraphs.
"Insurance Policy": With respect to any Mortgage Loan, any
hazard
insurance policy, flood insurance policy, title policy or other
insurance
policy that is maintained from time to time in respect of such
Mortgage Loan
or the related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy,
to
the extent such proceeds are not applied to the restoration of the
related
Mortgaged Property, released to the Mortgagor, or any tenants or
ground
lessors, as the case may be, pursuant to the terms of the related
Mortgage or
lease, in accordance with the Servicing Standard.
"Insured Environmental Event": As defined in Section 3.07(d).
"Interest Accrual Period": With respect to any Distribution Date,
the
calendar month immediately preceding the calendar month in which
such
Distribution Date occurs.
"Interest Reserve Account": The segregated account (which may be
a
sub-account of the Distribution Account) created and maintained by
the Trustee
pursuant to Section 3.04(c) in trust for Certificateholders, which
shall be
entitled "Wells Fargo Bank, N.A., as Trustee, on behalf of and in
trust for
the registered holders of Merrill Lynch Mortgage Trust 2005-MCP1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MCP1".
"Interest Reserve Amount": With respect to each Interest Reserve
Loan
and each Distribution Date that occurs in February of each year
subsequent to
2005 and in January of each year subsequent to 2005 that is not a
leap year,
an amount equal to one day's interest at the related Net Mortgage
Rate on the
related Stated Principal Balance as of the Due Date in the month in
which such
Distribution Date occurs (but prior to the application of any
amounts owed on
such Due Date), to the extent a Periodic Payment or P&I Advance
is made in
respect thereof for such Due Date as of the related P&I Advance
Date, in the
case of a Periodic Payment, or as of the related Distribution Date,
in the
case of a P&I Advance.
"Interest Reserve Loan": Each Trust Mortgage Loan that is an
Actual/360 Mortgage Loan and each Trust REO Loan that relates to an
Actual/360
Mortgage Loan.
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"Interested Person": The Depositor, the Mortgage Loan Seller,
the
Master Servicer, the Special Servicer, any Independent Contractor
hired by the
Special Servicer, any related Non-Trust Noteholder, any Holder of
a
Certificate or any Affiliate of any such Person.
"Internet Website": Either the Internet website maintained by
the
Trustee (located at "www.ctslink.com/cmbs" or such other address as
provided
to the parties hereto from time to time) or the Internet website
maintained by
the Master Servicer, as the case may be.
"Investment Account": As defined in Section 3.06(a).
"Investment Grade Certificate": As of any date of determination,
a
Certificate that is rated in one of the four highest generic rating
categories
by at least one Rating Agency.
"Investment Period": With respect to any Distribution Date and
(i)
each of the Collection Account, any Servicing Account, any Reserve
Account,
any REO Account and any Loan Combination Custodial Account, the
related
Collection Period and (ii) each of the Distribution Account, the
Interest
Reserve Account, the Additional Interest Account and the
Gain-on-Sale Reserve
Account, the related Trustee Investment Period.
"Late Collections": With respect to any Mortgage Loan, all
amounts
received thereon during any Collection Period, other than Penalty
Interest,
whether as payments, Insurance Proceeds, Liquidation Proceeds or
otherwise,
which represent late collections of the principal and/or interest
portions of
a Scheduled Payment (other than a Balloon Payment) or an Assumed
Periodic
Payment in respect of such Mortgage Loan due or deemed due on a Due
Date in a
previous Collection Period, and not previously recovered. With
respect to any
REO Loan, all amounts received in connection with the related REO
Property
during any Collection Period, other than Penalty Interest, whether
as
Insurance Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which
represent late collections of the principal and/or interest
portions of a
Scheduled Payment (other than a Balloon Payment) or an Assumed
Periodic
Payment in respect of the predecessor Mortgage Loan or of an
Assumed Periodic
Payment in respect of such REO Loan due or deemed due on a Due Date
in a
previous Collection Period and not previously recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of
the
following events: (i) such Mortgage Loan is paid in full; (ii) a
Final
Recovery Determination is made with respect to such Mortgage Loan;
(iii) such
Mortgage Loan is repurchased or replaced by a Mortgage Loan Seller
pursuant to
the applicable Mortgage Loan Purchase Agreement; (iv) such Mortgage
Loan is
purchased by the Plurality Subordinate Certificateholder, the
Special Servicer
or any assignee thereof pursuant to Section 3.18 or by the Master
Servicer,
the Special Servicer or the Plurality Subordinate Certificateholder
pursuant
to Section 9.01; (v) in the case of an A-Note Trust Mortgage Loan
or the
Westchester Trust Mortgage Loan, such Mortgage Loan is purchased by
the
related B-Noteholder (in the case of an A-Note Trust Mortgage Loan)
or by the
Westchester Pari Passu Noteholder or a Westchester Subordinate
Noteholder (in
the case of the Westchester Trust Mortgage Loan) pursuant to the
related Loan
Combination Intercreditor Agreement; (vi) such Mortgage Loan is
purchased by a
mezzanine lender pursuant to the related mezzanine intercreditor
agreement; or
(vii) such Mortgage Loan is removed from the Trust by the Sole
Certificate
Owner in connection with an exchange of all of the outstanding
Certificates
owned by the Sole Certificate Owner for all of the Trust Mortgage
Loans and
each REO Property remaining in the Trust Fund pursuant to Section
9.01. With
respect to any REO Property (and the related REO Loan), any of the
following
events: (i) a Final Recovery Determination is
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made with respect to such REO Property; (ii) such REO Property is
purchased or
replaced by a Mortgage Loan Seller pursuant to the applicable
Mortgage Loan
Purchase Agreement; (iii) such REO Property is purchased by the
Master
Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder
pursuant to Section 9.01; or (iv) such REO Property is removed from
the Trust
Fund by the Sole Certificate Owner in connection with an exchange
of all of
the outstanding Certificates owned by the Sole Certificate Owner
for all of
the Trust Mortgage Loans and each REO Property remaining in the
Trust Fund
pursuant to Section 9.01.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the
Special
Servicer in connection with: (i) the taking of all or a part of a
Mortgaged
Property or REO Property by exercise of the power of eminent domain
or
condemnation, subject, however, to the rights of any tenants and
ground
lessors, as the case may be, and the rights of the Mortgagor under
the terms
of the related Mortgage; (ii) the liquidation of a Mortgaged
Property or other
collateral constituting security for a defaulted Mortgage Loan,
through
trustee's sale, foreclosure sale, REO Disposition or otherwise,
exclusive of
any portion thereof required to be released to the related
Mortgagor in
accordance with applicable law and the terms and conditions of the
related
Mortgage Note and Mortgage; (iii) the realization upon any
deficiency judgment
obtained against a Mortgagor; (iv) the purchase of a Trust
Defaulted Mortgage
Loan by the Plurality Subordinate Certificateholder, the Special
Servicer or
any assignee thereof pursuant to Section 3.18; (v) the repurchase
or
substitution of a Trust Mortgage Loan or REO Property by a Mortgage
Loan
Seller, pursuant to the applicable Mortgage Loan Purchase
Agreement; (vi) the
purchase of a Trust Mortgage Loan or REO Property by the Master
Servicer, the
Special Servicer, or the Plurality Subordinate Certificateholder
pursuant to
Section 9.01; (vii) the purchase of an A-Note Trust Mortgage Loan
by the
related B-Noteholder or the purchase of the Westchester Trust
Mortgage Loan by
the Westchester Pari Passu Noteholder or a Westchester Subordinate
Noteholder,
in each case pursuant to the related Loan Combination Intercreditor
Agreement;
(viii) the purchase of a Mortgage Loan by a mezzanine lender
pursuant to the
related mezzanine intercreditor agreement; (ix) the removal of a
Mortgage Loan
or REO Property from the Trust Fund by the Sole Certificate Owner
in
connection with an exchange of all of the outstanding Certificates
owned by
the Sole Certificate Owner for all of the Trust Mortgage Loans and
each REO
Property remaining in the Trust Fund pursuant to Section 9.01; or
(x) except
for purposes of Section 3.11, any Westchester Control Retention
Collateral
transferred to the related Loan Combination Custodial Account,
subject to and
in accordance with the terms of Section 6.12(f), to cover losses
and expenses
with respect to the Westchester Loan Combination.
"Loan Combination": Any A/B Loan Combination or the Westchester
Loan
Combination, as the case may be. The term "Loan Combination" shall
include any
successor REO Loans with respect to the applicable Mortgage Loans
comprising
such Loan Combination.
"Loan Combination Custodial Account": With respect to any Loan
Combination, the separate account (which may be a sub-account of
the
Collection Account) created and maintained by the Master Servicer
pursuant to
Section 3.04(h) and held on behalf of the Certificateholders and
the related
Non-Trust Noteholder, which shall be entitled substantially as
follows:
"Midland Loan Services, Inc., as Master Servicer for Wells Fargo
Bank, N.A.,
as Trustee, on behalf of and in trust for the registered holders of
Merrill
Lynch Mortgage Trust 2005-MCP1, Commercial Mortgage Pass-Through
Certificates,
Series 2005-MCP1, and [name of the related Non-Trust
Noteholder(s)], as their
interests may appear". Any such account shall be an Eligible
Account.
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"Loan Combination Intercreditor Agreement": With respect to each
Loan
Combination, each intercreditor agreement (including the
Westchester
Intercreditor Agreement) in effect between (i) the Trust Fund as
holder of the
related Trust Mortgage Loan and (ii) the Non-Trust
Noteholder(s).
"Loan Combination Mortgaged Property": The Mortgaged Property
securing a Loan Combination.
"Loan Combination REO Account": With respect to each Loan
Combination, a segregated account or accounts created and
maintained by the
Special Servicer pursuant to Section 3.16 on behalf of the Trustee,
in trust
for the Certificateholders, and the related Non-Trust Noteholder,
which shall
be entitled "Midland Loan Services, Inc., as Special Servicer for
Wells Fargo
Bank, N.A., as Trustee in trust for registered holders of Merrill
Lynch
Mortgage Trust 2005-MCP1, Commercial Mortgage Pass-Through
Certificates,
Series 2005-MCP1, and [name of the related Non-Trust
Noteholder(s)], as their
interests may appear".
"Loan Combination REO Property": With respect to each Loan
Combination, the related Mortgaged Property if such Mortgaged
Property is
acquired on behalf and in the name of the Trust Fund, for the
benefit of the
Certificateholders, and the related Non-Trust Noteholder, as their
interests
may appear, through foreclosure, acceptance of a deed-in-lieu of
foreclosure
or otherwise in accordance with applicable law in connection with
the default
or imminent default of such Loan Combination.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Trust Mortgage Loans
that
are Group 1 Mortgage Loans and any successor Trust REO Loans with
respect
thereto.
"Loan Group 1 Available Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the Available
Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the Principal
Distribution Amount
attributable to the Trust Mortgage Loans and Trust REO Loans
belonging to Loan
Group 1, taking into account adjustments in accordance with Section
1.02.
"Loan Group 2": Collectively, all of the Trust Mortgage Loans
that
are Group 2 Mortgage Loans and any successor Trust REO Loans with
respect
thereto.
"Loan Group 2 Available Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the Available
Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the Principal
Distribution Amount
attributable to the Trust Mortgage Loans and Trust REO Loans
belonging to Loan
Group 2, taking into account adjustments in accordance with Section
1.02.
"Loan-to-Value Ratio": With respect to any Trust Mortgage Loan, as
of
any date of determination, a fraction, expressed as a percentage,
the
numerator of which is (i) the then current principal amount of such
Trust
Mortgage Loan or (ii) in the case of the Westchester Trust
Mortgage
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Loan, the then aggregate current principal amount of the
Westchester Trust
Mortgage Loan and the Westchester Pari Passu Non-Trust Loan, in
each case as
adjusted in accordance with the considerations specified in
Section
3.08(a)(i), and the denominator of which is the Appraised Value of
the related
Mortgaged Property.
"Master Servicer": Midland Loan Services, Inc., its successor
in
interest, or any successor master servicer appointed as herein
provided.
"Master Servicing Fee": With respect to each Mortgage Loan and
each
REO Loan, the fee payable to the Master Servicer pursuant to
Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Trust
Mortgage
Loan, the per annum rate equal to the sum of the rates set forth
under the
columns "Master Servicing Fee Rate" and "Primary Servicing Fee
Rate" on the
Mortgage Loan Schedule, and with respect to each Non-Trust Loan, or
any
successor REO Loan with respect thereto, the per annum rate at
which any
related Master Servicing Fee is permitted to be calculated under
the related
Loan Combination Intercreditor Agreement.
"Merrill Mortgage Loan Purchase Agreement": That certain
mortgage
loan purchase agreement, dated as of June 21, 2005, between the
Depositor and
MLMLI and relating to the transfer of the Merrill Trust Mortgage
Loans to the
Depositor.
"Merrill Trust Mortgage Loans": Each of the Trust Mortgage
Loans
transferred and assigned to the Depositor pursuant to the Merrill
Mortgage
Loan Purchase Agreement.
"Midland": Midland Loan Services, Inc. or its successor in
interest.
"MLMLI": Merrill Lynch Mortgage Lending, Inc. or its successor
in
interest.
"MLPF&S": Merrill Lynch, Pierce, Fenner & Smith
Incorporated, a
Delaware corporation, or its successor in interest.
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If neither such Rating Agency nor any successor remains
in
existence, "Moody's" shall be deemed to refer to such other
nationally
recognized statistical rating agency or other comparable Person
designated by
the Depositor, notice of which designation shall be given to the
Trustee, the
Master Servicer and the Special Servicer, and specific ratings of
Moody's
herein referenced shall be deemed to refer to the equivalent
ratings of the
party so designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed
of
trust, deed to secure debt or similar instrument that secures the
Mortgage
Note and creates a lien on the fee or leasehold interest in the
related
Mortgaged Property.
"Mortgage File": With respect to any Trust Mortgage Loan and, in
the
case of each Trust Mortgage Loan that is part of a Loan
Combination, also with
respect to the related Non-Trust Loan(s), collectively the
following documents
(which, in the case of a Loan Combination, except for the Mortgage
Notes
referred to in clause (i) of this definition and any modifications
thereof
referred to in clause (vi) of this definition, relate to the entire
Loan
Combination):
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(i)
(A) the original executed Mortgage Note for such Trust Mortgage
Loan,
including any power of attorney related to the execution thereof
(or a lost
note affidavit and indemnity with a copy of such Mortgage Note
attached
thereto), together with any and all intervening endorsements
thereon, endorsed
on its face or by allonge attached thereto (without recourse,
representation
or warranty, express or implied) to the order of Wells Fargo Bank,
N.A., as
trustee for the registered holders of Merrill Lynch Mortgage Trust
2005-MCP1,
Commercial Mortgage Pass-Through Certificates, Series 2005-MCP1, or
in blank,
and (B) in the case of a Loan Combination, a copy of the executed
Mortgage
Note for each related Non-Trust Loan;
(ii)
an original or a
copy of the Mortgage, together with originals or
copies of any and all intervening assignments thereof, in each case
(unless
not yet returned by the applicable recording office) with evidence
of
recording indicated thereon or certified by the applicable
recording office;
(iii) an original or a
copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage), together with
originals or
copies of any and all intervening assignments thereof, in each case
(unless
not yet returned by the applicable recording office) with evidence
of
recording indicated thereon or certified by the applicable
recording office;
(iv)
an original
executed assignment, in recordable form (except for
completion of the assignee's name, if the assignment is delivered
in blank,
and any missing recording information) or a certified copy of that
assignment
as sent for recording, of (A) the Mortgage, (B) any related
Assignment of
Leases (if such item is a document separate from the Mortgage) and
(C) any
other recorded document relating to the Trust Mortgage Loan
otherwise included
in the Mortgage File, in favor of Wells Fargo Bank, N.A., as
trustee for the
registered holders of Merrill Lynch Mortgage Trust 2005-MCP1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MCP1 (or, in the
case of a
Loan Combination, in favor of Wells Fargo Bank, N.A., as trustee
for the
registered holders of Merrill Lynch Mortgage Trust 2005-MCP1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MCP1, and in its
capacity as
lead lender on behalf of the holder of the related Non-Trust
Loan(s)), or in
blank;
(v)
an
original assignment of all unrecorded documents relating to the
subject Trust Mortgage Loan (to the extent not already assigned
pursuant to
clause (iv) above), in favor of Wells Fargo Bank, N.A., as trustee
for the
registered holders of Merrill Lynch Mortgage Trust 2005-MCP1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MCP1 (or, in the
case of a
Loan Combination, in favor of Wells Fargo Bank, N.A., as trustee
for the
registered holders of Merrill Lynch Mortgage Trust 2005-MCP1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MCP1, and in its
capacity as
lead lender on behalf of the holder of the related Non-Trust
Loan(s)), or in
blank;
(vi)
originals or
copies of any consolidation, assumption, substitution
and modification agreements in those instances where the terms or
provisions
of the Mortgage or Mortgage Note have been consolidated or modified
or the
subject Trust Mortgage Loan has been assumed;
(vii) the original or
a copy of the policy or certificate of lender's
title insurance or, if such policy has not been issued or located,
an original
or a copy of an irrevocable, binding
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commitment (which may be a pro forma policy or a marked version of
the policy
that has been executed by an authorized representative of the title
company or
an agreement to provide the same pursuant to binding escrow
instructions
executed by an authorized representative of the title company) to
issue such
title insurance policy;
(viii) any filed copies or other evidence of filing of any prior
UCC
Financing Statements in favor of the originator of such Trust
Mortgage Loan or
in favor of any assignee prior to the Trustee (but only to the
extent the
Mortgage Loan Seller had possession of such UCC Financing
Statements prior to
the Closing Date) and, if there is an effective UCC Financing
Statement in
favor of the Mortgage Loan Seller on record with the applicable
public office
for UCC Financing Statements, a UCC Financing Statement assignment,
in form
suitable for filing in favor of Wells Fargo Bank, N.A., as trustee
for the
registered holders of Merrill Lynch Mortgage Trust 2005-MCP1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MCP1, as assignee
(or, in the
case of a Loan Combination, in favor of Wells Fargo Bank, N.A., as
trustee for
the registered holders of Merrill Lynch Mortgage Trust 2005-MCP1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MCP1, and in its
capacity as
lead lender on behalf of the holder of the related Non-Trust
Loan(s)), or in
blank;
(ix)
an original or a
copy of any Ground Lease, guaranty or ground lessor
estoppel;
(x)
any
intercreditor agreement relating to permitted debt of the
Mortgagor (including, in the case of a Trust Mortgage Loan that is
part of a
Loan Combination, any related Loan Combination Intercreditor
Agreement) and
any intercreditor agreement relating to mezzanine debt related to
the
Mortgagor;
(xi)
an original or a
copy of any loan agreement, any escrow or reserve
agreement, any security agreement, any management agreement, any
agreed upon
procedures letter, any lockbox or cash management agreements,
any
environmental reports or any letter of credit (which letter of
credit shall
not be delivered in original form to the Trustee but rather to the
Master
Servicer), in each case relating to such Trust Mortgage Loan;
and
(xii) with respect to
a Trust Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or
franchisor comfort
letter;
provided that whenever the term "Mortgage File" is used to refer to
documents
actually received by the Trustee or by a Custodian on its behalf,
such term
shall not be deemed to include such documents required to be
included therein
unless they are actually so received, and with respect to any
receipt or
certification by the Trustee or the Custodian for documents
described in
clause (vi) of this definition, shall be deemed to include only
such documents
to the extent the Trustee or Custodian has actual knowledge of
their
existence.
"Mortgage Loan": Any Trust Mortgage Loan or any Non-Trust Loan.
As
used herein, the term "Mortgage Loan" includes the related Mortgage
Note,
Mortgage and other security documents contained in the related
Mortgage File
or otherwise held on behalf of the Trust and/or any Non-Trust
Noteholder, as
applicable.
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"Mortgage Loan Purchase Agreement": Any of the Countrywide
Mortgage
Loan Purchase Agreement, the Merrill Mortgage Loan Purchase
Agreement and the
PNC Mortgage Loan Purchase Agreement.
"Mortgage Loan Schedule": The list of Trust Mortgage Loans
transferred on the Closing Date to the Trustee as part of REMIC
I,
respectively, attached hereto as Exhibit B and in a computer
readable format.
Such list shall set forth the following information with respect to
each Trust
Mortgage Loan:
(i) the loan
identification number (as specified in Annex A-1 to
the Prospectus);
(ii)
the street address (including city, county, state and zip
code) and name of the related Mortgaged Property;
(iii) the
Cut-off Date Balance;
(iv)
the amount of the Periodic Payment due on the first Due Date
following the Closing Date;
(v) the Net
Mortgage Rate as of the Cut-off Date and the
original Mortgage Rate;
(vi)
the (A) original term to stated maturity, (B) remaining term
to stated
maturity and (C) Stated Maturity Date;
(vii) the
original and remaining amortization term;
(viii) whether
the Trust Mortgage Loan is secured by a Ground
Lease;
(ix)
the Master Servicing Fee Rate;
(x) whether
such Trust Mortgage Loan is an ARD Loan and if so
the Anticipated Repayment Date and Additional Interest Rate
for such ARD Loan;
(xi)
the related Mortgage Loan Seller and, if different, the
related originator;
(xii)
whether such Trust Mortgage Loan is insured by an
environmental policy;
(xiii) whether
such Trust Mortgage Loan is cross-defaulted or
cross-collateralized with any other Trust Mortgage Loan;
(xiv)
whether such Trust Mortgage Loan is a Defeasance Loan;
(xv)
whether the Trust Mortgage Loan is secured by a letter of
credit;
(xvi)
whether payments on such Trust Mortgage Loan are made to a
lock-box;
(xvii) the
amount of any Reserve Funds escrowed in respect of each
Trust Mortgage Loan;
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(xviii) the number of
days of any grace period permitted in respect
of any Periodic Payment due under such Trust Mortgage Loan;
(xix) the
property type of the related Mortgaged Property as
reported in the rent roll;
(xx)
the original principal balance of such Trust Mortgage Loan;
(xxi) the
interest accrual basis of such Trust Mortgage Loan;
(xxii) the
primary servicing fee rate, if any, for such Trust
Mortgage Loan; and
(xxiii) the applicable
Loan Group to which the Trust Mortgage Loan
belongs.
"Mortgage Loan Seller": MLMLI, Countrywide or PNC.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with
any rider,
addendum or amendment thereto, or any renewal, substitution or
replacement of
such note.
"Mortgage Pool": Collectively, all of the Trust Mortgage Loans
and
any successor Trust REO Loans. The Non-Trust Loans shall not
constitute part
of the Mortgage Pool.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or prior
to
its Stated Maturity Date, the fixed annualized rate, not including
any
Additional Interest Rate, at which interest is scheduled (in the
absence of a
default) to accrue on such Mortgage Loan from time to time in
accordance with
the related Mortgage Note and applicable law; (ii) any Mortgage
Loan after its
Stated Maturity Date, the annualized rate described in clause (i)
above
determined without regard to the passage of such Stated Maturity
Date, but
giving effect to any modification thereof as contemplated by
Section 3.20; and
(iii) any REO Loan, the annualized rate described in clause (i) or
(ii), as
applicable, above determined as if the predecessor Mortgage Loan
had remained
outstanding.
"Mortgaged Property": The property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note,
including
without limitation, any Person that has not signed the related
Mortgage Note
but owns an interest in the related Mortgaged Property, which
interest has
been encumbered to secure such Mortgage Loan, and any Person that
has acquired
the related Mortgaged Property and assumed the obligations of the
original
obligor under the Mortgage Note, but excluding guarantors that do
not own the
related Mortgaged Property.
"Net Aggregate Prepayment Interest Shortfall": With respect to
any
Distribution Date, the amount, if any, by which (a) the aggregate
of all
Prepayment Interest Shortfalls incurred in connection with the
receipt of
Principal Prepayments on the Trust Mortgage Loans during the
related
Collection Period, exceeds (b) the aggregate amount deposited by
the Master
Servicer in the Collection Account for such Distribution Date
pursuant to
Section 3.19(a) in connection with such Prepayment Interest
Shortfalls on the
Trust Mortgage Loans.
"Net Investment Earnings": With respect to each of the
Collection
Account, the Interest Reserve Account, any Servicing Account, any
Reserve
Account, any REO Account, the Distribution
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Account, any Loan Combination Custodial Account, the Additional
Interest
Account and the Gain-on-Sale Reserve Account, for any Investment
Period, the
amount, if any, by which the aggregate of all interest and other
income
realized during such Investment Period on funds held in such
account, exceeds
the aggregate of all losses, if any, incurred during such
Investment Period in
connection with the investment of such funds in accordance with
Section 3.06
(other than losses of what would have otherwise constituted
interest or other
income earned on such funds).
"Net Investment Loss": With respect to each of the Collection
Account, any Servicing Account, any Reserve Account, any REO
Account, the
Distribution Account, any Loan Combination Custodial Account, the
Interest
Reserve Account, the Additional Interest Account, and the
Gain-on-Sale Reserve
Account, for any Investment Period, the amount by which the
aggregate of all
losses, if any, incurred during such Investment Period in
connection with the
investment of funds held in such account in accordance with Section
3.06
(other than losses of what would have otherwise constituted
interest or other
income earned on such funds), exceeds the aggregate of all interest
and other
income realized during such Investment Period on such funds.
"Net Mortgage Pass-Through Rate":
(A)
With respect to any Trust Mortgage Loan (or any successor Trust
REO
Loan with respect thereto) that accrues (or is deemed to
accrue)
interest on a 30/360 Basis, for any Distribution Date, an annual
rate
equal to the Net Mortgage Rate for such Trust Mortgage Loan as of
the
Closing Date (without regard to any modification, waiver or
amendment of
the
terms of such Trust Mortgage Loan subsequent to the Closing
Date);
and
(B)
With respect to any Trust Mortgage Loan (or any successor Trust
REO
Loan with respect thereto) that accrues interest on an
Actual/360
Basis, for any Distribution Date, an annual rate equal to twelve
times a
fraction, expressed as a percentage:
(1) the
numerator of which fraction is, subject to
adjustment as described below in this definition,
an amount of interest equal to the product of (a)
the number of days in the Interest Accrual Period
for such Distribution Date, multiplied by (b) the
Stated Principal Balance of such Trust Mortgage
Loan (or such Trust REO Loan) immediately preceding
such Distribution Date, multiplied by (c) 1/360,
multiplied by (d) the Net Mortgage Rate for such
Trust Mortgage Loan as of the Closing Date (without
regard to any modification, waiver or amendment of
the terms of such Trust Mortgage Loan subsequent to
the Closing Date); and
(2) the
denominator of which fraction is the Stated
Principal Balance of such Trust Mortgage Loan (or
such Trust REO Loan) immediately preceding that
Distribution Date.
Notwithstanding the foregoing, if the subject Distribution Date
occurs during January, except during a leap year, or February of
any year
subsequent to 2005, then the amount of interest referred to in the
fractional
numerator described in clause (B)(1) above will be decreased to
reflect any
Interest Reserve Amounts with respect to the subject Trust Mortgage
Loan (or
Trust REO Loan) transferred from the Distribution Account to the
Interest
Reserve Account in such calendar month. Furthermore, if the
subject
Distribution Date occurs during March of any year subsequent to
2005, then
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the amount of interest referred to in the fractional numerator
described in
clause (B)(1) above will be increased to reflect any Interest
Reserve Amounts
with respect to the subject Trust Mortgage Loan (or Trust REO
Loan)
transferred from the Interest Reserve Account to the Distribution
Account for
distribution on such Distribution Date.
"Net Mortgage Rate": With respect to any Trust Mortgage Loan or
any
Trust REO Loan, as of any date of determination, a rate per annum
equal to the
related Mortgage Rate minus the sum of the Trustee Fee Rate and the
applicable
Master Servicing Fee Rate; and with respect to any Non-Trust Loan
or any
successor REO Loan with respect thereto, the related Mortgage Rate
minus the
applicable Master Servicing Fee Rate.
"Net Operating Income" or "NOI": With respect to any Mortgaged
Property, for any twelve-month period, the total operating revenues
derived
from such Mortgaged Property during such period, minus the total
operating
expenses incurred in respect of such Mortgaged Property during such
period,
other than (i) non-cash items such as depreciation, (ii)
amortization, (iii)
actual capital expenditures and (iv) debt service on the related
Mortgage
Loan.
"New Lease": Any lease of REO Property entered into at the
direction
of the Special Servicer, including any lease renewed, modified or
extended on
behalf of the Trustee for the benefit of the Certificateholders
and, in the
case of a Loan Combination, the related Non-Trust
Noteholder(s).
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance
(including
any Workout-Delayed Reimbursement Amount that subsequently becomes
a
Nonrecoverable P&I Advance) or Nonrecoverable Servicing Advance
(including any
Workout-Delayed Reimbursement Amount that subsequently becomes
a
Nonrecoverable Servicing Advance).
"Nonrecoverable P&I Advance": Any P&I Advance previously
made or
proposed to be made, including any previously made P&I Advance
that
constitutes a Workout-Delayed Reimbursement Amount, in respect of
any Trust
Mortgage Loan or Trust REO Loan by the Master Servicer, the Trustee
or any
Fiscal Agent, as the case may be, that, as determined by the Master
Servicer,
the Special Servicer, the Trustee or any Fiscal Agent, as
applicable, in
accordance with the Servicing Standard with respect to such P&I
Advance
(together with any accrued and unpaid interest thereon), will not
be
ultimately recoverable from Late Collections, REO Revenues,
Insurance Proceeds
or Liquidation Proceeds, or any other recovery on or with respect
to such
Trust Mortgage Loan or Trust REO Loan (or, in the case of a Trust
Mortgage
Loan that is a part of a Loan Combination, on or with respect to
the related
Loan Combination); provided, however, the Special Servicer may, at
its option,
make a determination (which shall be binding upon the Master
Servicer, the
Trustee and any Fiscal Agent) in accordance with the Servicing
Standard, that
any P&I Advance previously made or proposed to be made, or any
Workout-Delayed
Reimbursement Amount previously made, by the Master Servicer, the
Trustee or
any Fiscal Agent is a Nonrecoverable P&I Advance and shall
deliver notice of
such determination to the Master Servicer, the Trustee and any
Fiscal Agent.
In making a recoverability determination, the applicable Person
will be
entitled to consider (among other things) the obligations of the
Mortgagor
under the terms of the related Trust Mortgage Loan as it may have
been
modified, to consider (among other things) the related Mortgaged
Properties in
their "as is" or then current conditions and occupancies, as
modified by such
Person's assumptions (consistent with the Servicing Standard)
regarding the
possibility and effects of future adverse change with respect to
such
Mortgaged Properties, to estimate and consider (among other things)
future
expenses, to estimate and consider (consistent with the Servicing
Standard)
(among
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other things) the timing of recoveries, and to consider the
existence and
amount of any outstanding Nonrecoverable Advances the reimbursement
of which
is being deferred pursuant to Section 4.03(f), any outstanding
Workout Delayed
Reimbursement Amounts and any Unliquidated Advances. In addition,
any such
Person may update or change its recoverability determinations at
any time and,
consistent with the Servicing Standard, may obtain from the Special
Servicer
any reasonably required analysis, Appraisals or market value
estimates or
other information in the Special Servicer's possession for such
purposes.
Absent bad faith, the Master Servicer's, the Special Servicer's,
the Trustee's
or any Fiscal Agent's determination as to the recoverability of any
P&I
Advance shall be conclusive and binding on the Certificateholders.
The Trustee
and any Fiscal Agent shall be entitled to conclusively rely on
any
recoverability determination made by the Master Servicer and the
Master
Servicer, the Trustee and any Fiscal Agent shall be entitled to
conclusively
rely on any recoverability determination made by the Special
Servicer and
shall be required to act in accordance with such determination.
"Nonrecoverable Servicing Advance": Any Servicing Advance
previously
made or proposed to be made, including any previously made
Servicing Advance
that constitutes a Workout-Delayed Reimbursement Amount, in respect
of a
Mortgage Loan or REO Loan by the Master Servicer, the Special
Servicer, the
Trustee or any Fiscal Agent, as the case may be, that, as
determined by the
Master Servicer, the Special Servicer, the Trustee or any Fiscal
Agent, as
applicable, in accordance with the Servicing Standard (together
with any
accrued and unpaid interest thereon), will not be ultimately
recoverable from
Late Collections, REO Revenues, Insurance Proceeds, Liquidation
Proceeds, or
any other recovery on or in respect of such Mortgage Loan or the
related REO
Property; provided, however, the Special Servicer may, at its
option, make a
determination (which shall be binding upon the Master Servicer, the
Trustee
and any Fiscal Agent) in accordance with the Servicing Standard,
that any
Servicing Advance previously made or proposed to be made, or
any
Workout-Delayed Reimbursement Amount previously made, by the Master
Servicer,
the Trustee or any Fiscal Agent is a Nonrecoverable Servicing
Advance and
shall deliver notice of such determination to the Master Servicer,
the Trustee
and any Fiscal Agent. In making such recoverability determination,
such Person
will be entitled to consider (among other things) only the
obligations of the
Mortgagor under the terms of the related Mortgage Loan as it may
have been
modified, to consider (among other things) the related Mortgaged
Properties in
their "as is" or then current conditions and occupancies, as
modified by such
party's assumptions (consistent with the Servicing Standard)
regarding the
possibility and effects of future adverse change with respect to
such
Mortgaged Properties, to estimate and consider (among other things)
future
expenses and to estimate and consider (consistent with the
Servicing Standard)
(among other things) the timing of recoveries, and to consider the
existence
and amount of any outstanding Nonrecoverable Advances the
reimbursement of
which is being deferred pursuant to Section 4.03(f), any
outstanding Workout
Delayed Reimbursement Amounts and any Unliquidated Advances. In
addition, any
such Person may update or change its recoverability determinations
at any time
and, consistent with the Servicing Standard, may obtain from the
Special
Servicer any reasonably required analysis, Appraisals or market
value
estimates or other information in the Special Servicer's possession
for such
purposes. Absent bad faith, the Master Servicer's, the Special
Servicer's, the
Trustee's or any Fiscal Agent's determination as to the
recoverability of any
Servicing Advance shall be conclusive and binding on the
Certificateholders.
The Trustee and any Fiscal Agent shall be entitled to conclusively
rely on any
recoverability determination made by the Master Servicer and the
Master
Servicer, the Trustee and any Fiscal Agent shall be entitled to
conclusively
rely on any recoverability determination made by the Special
Servicer and
shall be required to act in accordance with such determination.
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"Non-Registered Certificate": Unless and until registered under
the
Securities Act, any Class XC, Class E, Class F, Class G, Class H,
Class J,
Class K, Class L, Class M, Class N, Class P, Class Q, Class Z,
Class R-I or
Class R-II Certificate.
"Non-Trust Loan" Any B-Note Non-Trust Loan, any Westchester
Subordinate Non-Trust Loan or the Westchester Pari Passu Non-Trust
Loan, as
the case may be.
"Non-Trust Noteholder": The holder of a Non-Trust Loan.
"Non-United States Tax Person": Any Person other than a United
States
Tax Person.
"Officer's Certificate": A certificate signed by a Servicing
Officer
of the Master Servicer or the Special Servicer, as the case may be,
or by a
Responsible Officer of the Trustee.
"Opinion of Counsel": A written opinion of counsel (which counsel
may
be a salaried counsel for the Depositor, the Master Servicer or the
Special
Servicer) acceptable to and delivered to the Trustee or the Master
Servicer,
as the case may be, except that any opinion of counsel relating to
(a) the
qualification of REMIC I or REMIC II as a REMIC; (b) the
qualification of
either of Grantor Trust Z or Grantor Trust E as a grantor trust;
(c)
compliance with REMIC Provisions; or (d) the resignation of the
Master
Servicer or Special Servicer pursuant to Section 6.04 must be an
opinion of
counsel who is in fact Independent of the Master Servicer, the
Special
Servicer or the Depositor, as applicable.
"Option Holder": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"Original Class Principal Balance": With respect to any Class
of
Regular Certificates (other than the Class X Certificates), the
initial Class
Principal Balance thereof as of the Closing Date, in each case as
specified in
the Preliminary Statement.
"Original Class XC Notional Amount": $1,737,992,951.
"Original Class XP Notional Amount": $1,694,554,000.
"Original Notional Amount": The Original Class XC Notional Amount
or
the Original Class XP Notional Amount, as applicable.
"OTS": The Office of Thrift Supervision or any successor
thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any
other
interest therein, whether direct or indirect, legal or beneficial,
as owner or
as pledgee.
"Pass-Through Rate": With respect to:
(i) the Class
A-1 Certificates for any Distribution Date,
4.2180% per annum;
(ii)
the Class A-2 Certificates for any Distribution Date,
4.5560% per annum;
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<PAGE>
(iii) the
Class A-3 Certificates for any Distribution Date,
4.6740% per annum;
(iv)
the Class A-SB Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.6740% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(v) the Class
A-4 Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.7470% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(vi)
the Class A-1A Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.7350% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(vii) the
Class AM Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.8050% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(viii) the Class
AJ Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.8450% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(ix)
the Class B Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.9340% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(x) the Class
C Certificates for any Distribution Date, a per
annum rate equal to
the lesser of (a) 4.9530% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xi)
the Class D Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 5.0230% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xii) the
Class E Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 5.1310% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xiii) the Class
F Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date minus 0.013%
(xiv) the
Class G Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(xv)
the Class H Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
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<PAGE>
(xvi) the
Class J Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.5490% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xvii) the Class
K Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.5490% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xviii) the Class L
Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.5490% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xix) the
Class M Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.5490% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xx)
the Class N Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.5490% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xxi) the
Class P Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.5490% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xxii) the Class
Q Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.5490% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xxiii) the Class XC
Certificates, for any Distribution Date, a rate
equal to the weighted average of the Class XC Strip Rates
for the Class XC Components for such Distribution Date
(weighted on the basis of the respective Component Notional
Amounts of such Components outstanding immediately prior to
such Distribution Date); and
(xxiv) the Class
XP Certificates for any Distribution Date, a rate
equal to the weighted average of the Class XP Strip Rates
for the respective Class XP Components for such Distribution
Date (weighted on the basis of the respective Component
Notional Amounts of such Components outstanding immediately
prior to such Distribution Date).
"P&I Advance": As to any Trust Mortgage Loan or Trust REO Loan,
any
advance made by the Master Servicer, the Trustee or any Fiscal
Agent pursuant
to Section 4.03.
"P&I Advance Date": The Business Day immediately preceding
each
Distribution Date.
"Penalty Interest": With respect to any Mortgage Loan (or any
successor REO Loan with respect thereto), any amounts collected
thereon, other
than late payment charges, Additional Interest, Prepayment Premiums
or Yield
Maintenance Charges, that represent penalty interest (arising out
of a
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default) in excess of interest on such Mortgage Loan (or such
successor REO
Loan) accrued at the related Mortgage Rate.
"Percentage Interest": With respect to any Regular Certificate,
the
portion of the relevant Class evidenced by such Certificate,
expressed as a
percentage, the numerator of which is the Certificate Principal
Balance or
Certificate Notional Amount, as the case may be, of such
Certificate as of the
Closing Date, as specified on the face thereof, and the denominator
of which
is the Original Class Principal Balance or Original Notional
Amount, as the
case may be, of the relevant Class. With respect to a Residual
Certificate or
Class Z Certificate, the percentage interest in distributions to be
made with
respect to the relevant Class, as stated on the face of such
Certificate.
"Performance Certification": As defined in Section 8.16(b).
"Performing Party": As defined in Section 8.16(b).
"Periodic Payment": With respect to any Mortgage Loan as of any
Due
Date, the scheduled payment of principal and/or interest on such
Mortgage Loan
(exclusive of Additional Interest), including any Balloon Payment,
that is
actually payable by the related Mortgagor from time to time under
the terms of
the related Mortgage Note (as such terms may be changed or modified
in
connection with a bankruptcy or similar proceeding involving the
related
Mortgagor or by reason of a modification, waiver or amendment
granted or
agreed to by the Special Servicer pursuant to Section 3.20).
"Permitted Investments": Any one or more of the following
obligations
or securities (including obligations or securities of the Trustee
or one of
its Affiliates if otherwise qualifying hereunder):
(i)
direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or
any
agency or instrumentality thereof (having original maturities of
not more
than
365 days), provided such obligations are backed by the full
faith
and
credit of the United States. Such obligations must be limited
to
those instruments that have a predetermined fixed dollar amount
of
principal due at maturity that cannot vary or change. Interest may
either
be
fixed or variable. If such interest is variable, interest must be
tied
to a
single interest rate index plus a single fixed spread (if any),
and
move
proportionately with that index. In addition, such obligations
may
not
have a rating from S&P with an "r" highlighter;
(ii)
repurchase agreements or obligations with respect to any
security described in clause (i) above (having original maturities
of not
more
than 365 days), provided that the short-term deposit or debt
obligations, of the party agreeing to repurchase such obligations
are
rated in the highest rating categories of each of S&P and
Moody's or such
lower rating as will not result in an Adverse Rating Event, as
evidenced
in
writing by the Rating Agencies. In addition, it may not have a
rating
from
S&P with an "r" highlighter and its terms must have a
predetermined
fixed dollar amount of principal due at maturity that cannot vary
or
change. Interest may either be fixed or variable. If such interest
is
variable, interest must be tied to a single interest rate index
plus a
single fixed spread (if any), and move proportionately with that
index;
(iii)
federal funds, unsecured uncertified certificates of deposit,
time
deposits, demand deposits and bankers' acceptances of any bank
or
trust company organized under the laws of the
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United States or any state thereof (having original maturities of
not
more
than 365 days), the short term obligations of which are rated in
the
highest rating categories of each of S&P and Moody's or such
lower rating
as
will not result in an Adverse Rating Event, as evidenced in writing
by
the
Rating Agencies. In addition, it may not have a rating from S&P
with
an
"r" highlighter and its terms should have a predetermined fixed
dollar
amount of principal
due at maturity that cannot vary or change. Interest
may
either be fixed or variable. If such interest is variable,
interest
must
be tied to a single interest rate index plus a single fixed
spread
(if
any), and move proportionately with that index;
(iv)
commercial paper (including both non-interest bearing discount
obligations and interest-bearing obligations and having
original
maturities of not more than 365 days) of any corporation or other
entity
organized under the laws of the United States or any state thereof
which
is
rated in the highest rating category of each of S&P and Moody's
or
such
lower rating as will not result in an Adverse Rating Event, as
evidenced in writing by the Rating Agencies. The commercial paper
by its
terms must have a predetermined fixed dollar amount of principal
due at
maturity that cannot vary or change. In addition, it may not have
a
rating from S&P with an "r" highlighter. Interest may either be
fixed or
variable. If such interest is variable, interest must be tied to a
single
interest rate index plus a single fixed spread (if any), and
move
proportionately with that index;
(v)
money market funds which are rated in the highest applicable
rating category of each of S&P and Moody's (or such lower
rating as will
not
result in an Adverse Rating Event, as evidenced in writing by
the
Rating Agencies). In addition, it may not have a rating from
S&P with an
"r"
highlighter and its terms must have a predetermined fixed
dollar
amount of principal due at maturity that cannot vary or change;
and
(vi) any
other obligation or security acceptable to each Rating
Agency, evidence of which acceptability shall be provided in
writing by
each
Rating Agency to the Master Servicer, the Special Servicer and
the
Trustee;
provided that (1) no investment described hereunder shall evidence
either the
right to receive (x) only interest with respect to such investment
or (y) a
yield to maturity greater than 120% of the yield to maturity at par
of the
underlying obligations; and (2) no investment described hereunder
may be
purchased at a price greater than par if such investment may be
prepaid or
called at a price less than its purchase price prior to stated
maturity; and
provided further, that to the extent any investment described
hereunder
includes funds that relate to the Westchester Pari Passu Non-Trust
Loan and
one or more classes of any Westchester Pari Passu Non-Trust Loan
Related MBS
are rated by Fitch, then for purposes of clauses (i) through (vi)
above, the
phrase "each of S&P and Moody's" shall be deemed to mean "each
of S&P, Moody's
and Fitch", the phrase "an Adverse Rating Event" shall be deemed to
mean "an
Adverse Rating Event or a Westchester Related MBS Adverse Rating
Event", and
Fitch shall be a "Rating Agency" for purposes of this definition of
"Permitted
Investments".
"Permitted Transferee": Any Transferee that is not (i) a
Disqualified
Organization, (ii) any Person as to whom the transfer of any
Residual
Certificate may cause either REMIC I or REMIC II to fail to qualify
as a
REMIC, (iii) a Disqualified Non-United States Tax Person, (iv) a
Disqualified
Partnership or (v) a foreign permanent establishment or fixed base
(within the
meaning of any applicable income tax treaty between the United
States and any
foreign jurisdiction) of a United States Tax Person.
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"Person": Any individual, corporation, partnership, joint
venture,
association, joint-stock company, limited liability company,
trust,
unincorporated organization or government or any agency or
political
subdivision thereof.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year
of
REMIC I or REMIC II, the Holder of Certificates holding the largest
Percentage
Interest of the related Class of Residual Certificates.
"Plurality Subordinate Certificateholder": As of any date of
determination, any single Holder of Certificates (or, if the
Controlling Class
consists of Book-Entry Certificates, any single Certificate Owner)
(other than
any Holder (or Certificate Owner, as the case may be) which is an
Affiliate of
the Depositor or a Mortgage Loan Seller) with the largest
percentage of Voting
Rights allocated to such Class. With respect to determining the
Plurality
Subordinate Certificateholder, the Class A Senior Certificates
collectively
shall be deemed to be a single Class of Certificates, with such
Voting Rights
allocated among the Holders of Certificates (or Certificate Owners)
of such
Classes of Class A Senior Certificates in proportion to the
respective
Certificate Principal Balances of such Certificates as of such date
of
determination.
"PNC": PNC Bank, National Association, a national banking
association, or its successor in interest.
"PNC Capital Markets": PNC Capital Markets, Inc., a
Pennsylvania
corporation, or its successor in interest.
"PNC Mortgage Loan Purchase Agreement": That certain mortgage
loan
purchase agreement, dated as of June 21, 2005, between the
Depositor and PNC
and relating to the transfer of the PNC Trust Mortgage Loans to the
Depositor.
"PNC Trust Mortgage Loans": Each of the Trust Mortgage Loans
transferred and assigned to the Depositor pursuant to the PNC
Mortgage Loan
Purchase Agreement.
"Pool REO Account": A segregated account or accounts created
and
maintained by the Special Servicer pursuant to Section 3.16 on
behalf of the
Trustee in trust for the Certificateholders, which shall be
entitled "Midland
Loan Services, Inc., as Special Servicer, for Wells Fargo Bank,
N.A., as
Trustee in trust for the registered holders of Merrill Lynch
Mortgage Trust
2005-MCP1, Commercial Mortgage Pass-Through Certificates, Series
2005-MCP1".
"Prepayment Assumption": For purposes of determining the accrual
of
original issue discount, market discount and premium, if any, on
the
Certificates for federal income tax purposes, (i) each Trust ARD
Loan is
repaid on its Anticipated Repayment Date, (ii) no Trust Mortgage
Loan will
otherwise be paid prior to maturity and (iii) there will be no
extension of
maturity for any Trust Mortgage Loan.
"Prepayment Interest Excess": With respect to any Mortgage Loan
that
was subject to a voluntary Principal Prepayment in full or in part
during any
Collection Period, which Principal Prepayment was applied to such
Mortgage
Loan following such Mortgage Loan's Due Date in such
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<PAGE>
Collection Period, the amount of interest (net of related Master
Servicing
Fees and, if applicable, any Additional Interest and Penalty
Interest) accrued
on the amount of such Principal Prepayment during the period from
and after
such Due Date and to but not including the date such Principal
Prepayment was
applied to such Mortgage Loan, to the extent collected (without
regard to any
related Prepayment Premium or Yield Maintenance Charge actually
collected).
"Prepayment Interest Shortfall": With respect to any Mortgage
Loan
that was subject to a voluntary Principal Prepayment in full or in
part during
any Collection Period, which Principal Prepayment was applied to
such Mortgage
Loan prior to such Mortgage Loan's Due Date in such Collection
Period, the
amount of interest, to the extent not collected from the related
Mortgagor
(without regard to any Prepayment Premium or Yield Maintenance
Charge actually
collected), that would have accrued (at a rate per annum equal to
the sum of
(x) the related Net Mortgage Rate for such Mortgage Loan and (y)
the Trustee
Fee Rate), on the amount of such Principal Prepayment during the
period
commencing on the date as of which such Principal Prepayment was
applied to
such Mortgage Loan and ending on the day immediately preceding such
Due Date,
inclusive (net of any portion of that interest that would have
constituted
Penalty Interest and/or Additional Interest, if applicable).
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield
Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor
in connection with a Principal Prepayment.
"Primary Collateral": The Mortgaged Property directly securing
a
Crossed Loan and excluding any property as to which the related
lien may only
be foreclosed upon by exercise of cross-collateralization
provisions.
"Prime Rate": The "prime rate" published in the "Money Rates"
section
of The Wall Street Journal, as such "prime rate" may change from
time to time.
If The Wall Street Journal ceases to publish the "prime rate", then
the Master
Servicer shall select an equivalent publication that publishes such
"prime
rate"; and if such "prime rate" is no longer generally published or
is
limited, regulated or administered by a governmental or
quasi-governmental
body, then the Master Servicer shall select a comparable interest
rate index.
In either case, such selection shall be made by the Master Servicer
in its
sole discretion and the Master Servicer shall notify the Trustee
and the
Special Servicer in writing of its selection.
"Principal Distribution Amount": With respect to any
Distribution
Date, the aggregate of the following (without duplication):
(a) the
aggregate of the principal portions of all Periodic Payments
(other than Balloon Payments) and any Assumed Periodic Payments due
or
deemed due in respect of the Trust Mortgage Loans for their
respective
Due
Dates occurring during the related Collection Period, to the
extent
paid
by the related Mortgagor during or prior to, or otherwise
received
during, the related Collection Period or advanced with respect to
such
Distribution Date;
(b) the
aggregate of all Principal Prepayments received on the Trust
Mortgage Loans during the related Collection Period;
(c) with
respect to any Trust Mortgage Loan as to which the related
Stated Maturity Date occurred during or prior to the related
Collection
Period, any payment of principal (other
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than
a Principal Prepayment) made by or on behalf of the related
Mortgagor during the related Collection Period (including any
Balloon
Payment), net of any portion of such payment that represents a
recovery
of
the principal portion of any Periodic Payment (other than a
Balloon
Payment) due, or the principal portion of any Assumed Periodic
Payment
deemed due, in respect of such Trust Mortgage Loan on a Due Date
during
or
prior to the related Collection Period and included as part of
the
Principal Distribution Amount for such Distribution Date or any
prior
Distribution Date pursuant to clause (a) above;
(d) the
aggregate of all Liquidation Proceeds, Insurance Proceeds
and,
to the extent not otherwise included in clause (a), (b) or (c)
above, payments and revenues that were received on the Trust
Mortgage
Loans during the
related Collection Period and that were identified and
applied by the Master Servicer and/or Special Servicer as
recoveries of
principal of the Trust Mortgage Loans, in each case net of any
portion of
such
amounts that represents a recovery of the principal portion of
any
Periodic Payment (other than a Balloon Payment) due, or of the
principal
portion of any Assumed Periodic Payment deemed due, in respect of
the
related Trust Mortgage Loan on a Due Date during or prior to the
related
Collection Period and included as part of the Principal
Distribution
Amount for such Distribution Date or any prior Distribution Date
pursuant
to
clause (a) above;
(e) with
respect to any REO Properties, the aggregate of the
principal portions of all Assumed Periodic Payments deemed due in
respect
of
the related Trust REO Loans for their respective Due Dates
occurring
during the related Collection Period to the extent received (in the
form
of
REO Revenues or otherwise) during the related Collection Period
or
advanced with respect to such Distribution Date;
(f) with
respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that
were
received during the related Collection Period on such REO
Properties and
that
were identified and applied by the Master Servicer and/or
Special
Servicer as recoveries of principal of the related Trust REO Loans,
in
each
case net of any portion of such amounts that represents a
recovery
of
the principal portion of any Periodic Payment (other than a
Balloon
Payment) due, or of the principal portion of any Assumed Periodic
Payment
deemed due, in respect of the related Trust REO Loan or the
predecessor
Trust Mortgage Loan on a Due Date during or prior to the
related
Collection Period and included as part of the Principal
Distribution
Amount for such Distribution Date or any prior Distribution Date
pursuant
to
clause (a) or (e) above; and
(g) if
such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal
Distribution
Amount for the immediately preceding Distribution Date, over
the
aggregate distributions of principal made on the Sequential Pay
Certificates on such immediately preceding Distribution Date
pursuant to
Section 4.01;
provided that if any Nonrecoverable Advance or Workout-Delayed
Reimbursement
Amount is reimbursed, or interest on any Nonrecoverable Advance is
paid, from
collections on the Mortgage Pool received during the related
Collection Period
that are allocable as principal, as provided in Section 1.02(a),
then the
Principal Distribution Amount for the subject Distribution Date
shall be
reduced (to not less than zero) as and to the extent provided in
Section
1.02(b); and provided, further, that if any Recovered Amounts are
received
during the related Collection Period, then the Principal
Distribution
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Amount for the subject Distribution Date shall be increased as and
to the
extent provided in Section 1.02(c).
Any allocation of the Principal Distribution Amount between
Loan
Group 1 and Loan Group 2 for purposes of calculating the Loan Group
1
Principal Distribution Amount and the Loan Group 2 Distribution
Amount shall
take into account Section 1.02.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan that is received in advance of its
scheduled Due
Date; and provided that it shall not include a payment of principal
that is
accompanied by an amount of interest representing scheduled
interest due on
any date or dates in any month or months subsequent to the month
of
prepayment.
"Principal Recovery Fee": With respect to each Specially
Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer
out of
certain related recoveries pursuant to the third paragraph of
Section 3.11(c).
"Principal Recovery Fee Rate": With respect to all amounts set
forth
in the third paragraph of Section 3.11(c), 1.0%.
"Prium Office Portfolio II A-Note Trust Mortgage Loan": The
A-Note
Trust Mortgage Loan identified as loan number 8 on the Mortgage
Loan Schedule
and as being secured by the Prium Office Portfolio.
"Prium Office Portfolio II B-Note Non-Trust Loan": The B-Note
Non-Trust Loan that relates to the Prium Office Portfolio II A-Note
Trust
Mortgage Loan.
"Privileged Person": Any Certificateholder, any Certificate
Owner,
any prospective transferee of a Certificate or interest therein,
any Rating
Agency, any Mortgage Loan Seller, any Non-Trust Noteholder, any
Underwriter or
any party hereto; provided that no Certificate Owner or prospective
transferee
of a Certificate or an interest therein shall be considered a
"Privileged
Person" or be entitled to a password or restricted access as
contemplated by
Section 3.15 unless such Person has delivered to the Trustee or the
Master
Servicer, as applicable, a certification in the form of Exhibit I-1
or Exhibit
I-2 (or such other form as may be reasonably acceptable to the
Trustee or the
Master Servicer, as applicable), as applicable.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The prospectus dated June 10, 2005, as supplemented
by
the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement": The final prospectus supplement dated
June
21, 2005 of the Depositor relating to the registration of the
Registered
Certificates under the Securities Act.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Option Notice": As defined in Section 3.18(e).
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"Purchase Price": With respect to any Trust Mortgage Loan (or
Trust
REO Loan), a cash price equal to the outstanding principal balance
of such
Trust Mortgage Loan (or Trust REO Loan) as of the date of purchase,
together
with (a) all accrued and unpaid interest on such Trust Mortgage
Loan (or Trust
REO Loan) at the related Mortgage Rate (other than Additional
Interest) to but
not including the Due Date in the Collection Period of purchase,
(b) any
accrued interest on P&I Advances (other than Unliquidated
Advances in respect
of prior P&I Advances) made with respect to such Trust Mortgage
Loan (or Trust
REO Loan), (c) all related and unreimbursed (from collections on
such Trust
Mortgage Loan and, if such Trust Mortgage Loan is part of a Loan
Combination,
any related Non-Trust Loan (or Trust REO Loan and, if such Trust
REO Loan is a
successor to a Trust Mortgage Loan that is part of a Loan
Combination, any
related REO Loan that is a successor to a related Non-Trust Loan))
Servicing
Advances (together with Unliquidated Advances) plus any accrued and
unpaid
interest thereon (other than on Unliquidated Advances), (d) any
reasonable
costs and expenses, including, but not limited to, the cost of any
enforcement
action (including reasonable legal fees), incurred by the Master
Servicer, the
Special Servicer or the Trust Fund in connection with any such
purchase by a
Mortgage Loan Seller (to the extent not included in clause (c)
above) and
Principal Recovery Fees payable (to the extent payable pursuant to
Section
3.11(c)) with respect to such Trust Mortgage Loan (or Trust REO
Loan), and (e)
any other Additional Trust Fund Expenses in respect of such Trust
Mortgage
Loan (or Trust REO Loan) (including any Additional Trust Fund
Expenses (which
includes Special Servicing Fees and Workout Fees) previously
reimbursed or
paid by the Trust Fund but not so reimbursed by the related
Mortgagor or from
related Insurance Proceeds or Liquidation Proceeds); provided that
the
Purchase Price shall not be reduced by any outstanding P&I
Advance.
"Qualified Institutional Buyer" or "QIB": A "qualified
institutional
buyer" within the meaning of Rule 144A under the Securities
Act.
"Qualified Insurer": An insurance company or security or
bonding
company qualified to write the related Insurance Policy in the
relevant
jurisdiction (i) with a minimum claims paying ability rating of at
least "A-"
by S&P, "A3" by Moody's and, if applicable, "A" by Fitch (if
rated by Fitch)
(or the obligations of which are guaranteed or backed by a company
having such
a claims paying ability) and (ii) with respect to the fidelity bond
and errors
and omissions Insurance Policy required to be maintained pursuant
to Section
3.07(c), an insurance company that has a claims paying ability
rated no lower
than two rating categories (without regard to pluses or minuses or
numerical
qualifications) below the rating assigned to the then highest
rated
outstanding Certificate, but in no event lower than "A-" by
S&P, "A3" by
Moody's and, if applicable, "A" by Fitch (if rated by Fitch) (or
the
obligations of which are guaranteed or backed by a company having
such a
claims paying ability) or, in the case of clauses (i) and (ii),
such other
rating as each Rating Agency shall have confirmed in writing will
not result
in an Adverse Rating Event or a Westchester Related MBS Adverse
Rating Event.
For purposes of the foregoing, the ratings from Fitch shall only be
applicable
if the Westchester Loan Combination is involved and one or more
classes of any
Westchester Pari Passu Non-Trust Loan Related MBS are rated by
Fitch.
"Qualified Substitute Mortgage Loan": A mortgage loan which must,
on
the date of substitution: (i) have an outstanding principal
balance, after
application of all scheduled payments of principal and interest due
during or
prior to the month of substitution, not in excess of the Stated
Principal
Balance of the deleted Trust Mortgage Loan as of the Due Date in
the calendar
month during which the substitution occurs; (ii) have a Mortgage
Rate not less
than the Mortgage Rate of the deleted Trust Mortgage Loan; (iii)
have the same
Due Date as and a grace period no longer than the deleted
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Trust Mortgage Loan; (iv) accrue interest on the same basis as the
deleted
Trust Mortgage Loan (for example, on the basis of a 360-day year
consisting of
twelve 30-day months); (v) have a remaining term to stated maturity
not
greater than, and not more than two years less than, the remaining
term to
stated maturity of the deleted Trust Mortgage Loan; (vi) have a
then current
Loan-to-Value Ratio not higher than that of the deleted Trust
Mortgage Loan
and a current Loan-to-Value Ratio not higher than the then
current
Loan-to-Value Ratio of the deleted Trust Mortgage Loan; (vii)
comply as of the
date of substitution with all of the representations and warranties
set forth
in the applicable Mortgage Loan Purchase Agreement; (viii) have
an
Environmental Assessment that indicates no adverse environmental
conditions
and an engineering report that indicates no adverse physical
condition with
respect to the related Mortgaged Property and which will be
delivered as a
part of the related Mortgage File; (ix) have a current Debt Service
Coverage
Ratio of not less than the greater of the original Debt Service
Coverage Ratio
of the deleted Trust Mortgage Loan and the current Debt Service
Coverage Ratio
of the deleted Trust Mortgage Loan; (x) be determined by an Opinion
of Counsel
(at the applicable Mortgage Loan Seller's expense) to be a
"qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of
the Code;
(xi) not have a maturity date after the date two years prior to the
Rated
Final Distribution Date; (xii) not be substituted for a deleted
Trust Mortgage
Loan unless the Trustee has received prior confirmation in writing
by each
Rating Agency that such substitution will not result in an Adverse
Rating
Event (the cost, if any, of obtaining such confirmation to be paid
by the
applicable Mortgage Loan Seller); (xiii) have a date of origination
that is
not more than 12 months prior to the date of substitution; (xiv)
have been
approved by the Controlling Class Representative (or, if there is
no
Controlling Class Representative then serving, by the Holders of
Certificates
representing a majority of the Voting Rights allocated to the
Controlling
Class), which approval may not be unreasonably withheld or delayed;
(xv) not
be substituted for a deleted Trust Mortgage Loan if it would result
in the
termination of the REMIC status of any of the REMICs established
under this
Agreement or the imposition of tax on any of such REMICs other than
a tax on
income expressly permitted or contemplated to be received by the
terms of this
Agreement, as determined by an Opinion of Counsel (at the
applicable Mortgage
Loan Seller's expense); (xvi) have comparable prepayment
restrictions; and
(xvii) become a part of the same Loan Group as the deleted Trust
Mortgage
Loan. In the event that one or more mortgage loans are substituted
for one or
more deleted Trust Mortgage Loans, then the amounts described in
clause (i)
shall be determined on the basis of aggregate principal balances
and the rates
described in clause (ii) above (provided that the lowest Net
Mortgage Rate
shall not be lower than the highest fixed Pass-Through Rate of any
Class of
Sequential Pay Certificates outstanding) and the remaining term to
stated
maturity referred to in clause (v) above shall be determined on a
weighted
average basis. When a Qualified Substitute Mortgage Loan is
substituted for a
deleted Trust Mortgage Loan, the applicable Mortgage Loan Seller
shall certify
that the proposed Qualified Substitute Mortgage Loan meets all of
the
requirements of the above definition and shall send such
certification to the
Trustee.
"Rated Final Distribution Date": The Distribution Date in June
2043.
"Rating Agency": Each of S&P and Moody's; provided that, if one
of
more classes of any Westchester Pari Passu Non-Trust Loan Related
MBS are
rated by Fitch or Dominion Bond Rating Service, Inc., then for
purposes of the
term "Westchester Related MBS Adverse Rating Event" as used in this
Agreement
or as otherwise specified in this Agreement, Fitch and Dominion
Bond Rating
Service, Inc. shall each be a Rating Agency.
"Realized Loss": With respect to: (1) each Specially Serviced
Mortgage Loan or Corrected Mortgage Loan as to which a Final
Recovery
Determination has been made, or with respect to
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any successor REO Loan as to which a Final Recovery Determination
has been
made as to the related REO Property, an amount (not less than zero)
equal to
(a) the unpaid principal balance of such Mortgage Loan or REO Loan,
as the
case may be, as of the commencement of the Collection Period in
which the
Final Recovery Determination was made, plus (b) without taking into
account
the amount described in subclause (1)(d) of this definition, all
accrued but
unpaid interest on such Mortgage Loan or such REO Loan, as the case
may be, at
the related Mortgage Rate to but not including the Due Date in the
Collection
Period in which the Final Recovery Determination was made
(exclusive of any
portion thereof that constitutes Penalty Interest, Additional
Interest,
Prepayment Premiums or Yield Maintenance Charges), plus (c) any
related unpaid
servicing expenses, any related Servicing Advances (together with
Unliquidated
Advances in respect of prior related Servicing Advances) that, as
of the
commencement of the Collection Period in which the Final
Recovery
Determination was made, had not been reimbursed from the subject
Mortgage Loan
or REO Property, as the case may be, and any new related Servicing
Advances
made during such Collection Period, minus (d) all payments and
proceeds, if
any, received in respect of and allocable to such Mortgage Loan or
such REO
Loan, as the case may be, during the Collection Period in which
such Final
Recovery Determination was made net of any portion of such payments
and/or
proceeds that is payable or reimbursable in respect of the related
liquidation
and other servicing expenses and, in the case of a Trust Mortgage
Loan or
Trust REO Loan that is part of a Loan Combination, net of any
portion of such
payments and/or proceeds that represent Liquidation Proceeds
payable to the
holder of the related Non-Trust Loan(s); (2) each defaulted
Mortgage Loan as
to which any portion of the principal or previously accrued
interest (other
than Additional Interest and Penalty Interest) payable thereunder
or any
Unliquidated Advance was canceled in connection with a bankruptcy
or similar
proceeding involving the related Mortgagor or a modification,
waiver or
amendment of such Mortgage Loan granted or agreed to by the Special
Servicer
pursuant to Section 3.20, the amount of such principal and/or
interest or
Unliquidated Advance so canceled; (3) each Mortgage Loan as to
which the
Mortgage Rate thereon has been permanently reduced and not
recaptured for any
period in connection with a bankruptcy or similar proceeding
involving the
related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan
granted or agreed to by the Special Servicer pursuant to Section
3.20, the
amount of the consequent reduction in the interest portion of each
successive
Periodic Payment due thereon (each such Realized Loss shall be
deemed to have
been incurred on the Due Date for each affected Periodic Payment);
(4) each
Trust Mortgage Loan or Trust REO Loan as to which there were
any
Nonrecoverable Advances, the amount of any such Nonrecoverable
Advance
reimbursed (and/or interest thereon paid) from amounts that would
have
otherwise been distributable as principal on the Certificates; and
(5) each
Trust Mortgage Loan purchased from the Trust Fund at a price less
than the
Purchase Price therefor, the amount of the deficiency.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which
such
Distribution Date occurs.
"Recording/Filing Agent": As defined in Section 2.01(d).
"Recovered Amount": As defined in Section 1.02(c).
"Registered Certificate": Any Class A-1, Class A-2, Class A-3,
Class
A-SB, Class A-4, Class A-1A, Class AM, Class AJ, Class B, Class C,
Class D or
Class XP Certificate.
"Regular Certificate": Any REMIC II Certificate other than a
Class
R-II Certificate.
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"Reimbursement Rate": The rate per annum applicable to the accrual
of
interest on Servicing Advances in accordance with Section 3.03(d)
and on P&I
Advances in accordance with Section 4.03(d), which rate per annum
is equal to
the Prime Rate.
"REMIC": A "real estate mortgage investment conduit" as defined
in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 8.14.
"REMIC I": The segregated pool of assets subject hereto,
constituting
the primary trust created hereby and to be administered hereunder
with respect
to which a separate REMIC election is to be made and, consisting
of: (i) all
of the Trust Mortgage Loans as from time to time are subject to
this Agreement
and all payments under and proceeds of such Trust Mortgage Loans
received
after the Closing Date (excluding the Excess Servicing Strip and
all
Additional Interest on such Trust Mortgage Loans), together with
all documents
included in the related Mortgage Files and any related Escrow
Payments and
Reserve Funds; (ii) all amounts (inclusive of the Closing Date
Deposit but
exclusive of the Excess Servicing Strip and all Additional
Interest) held from
time to time in the Collection Account, the Interest Reserve
Account, any Pool
REO Account, the Gain-on-Sale Reserve Account, any Loan Combination
Custodial
Account and the Distribution Account; (iii) any REO Property
acquired in
respect of a Trust Mortgage Loan ; (iv) the rights of the Depositor
under
Sections 2, 3, 8, 9, 10, 11, 12, 13, 14, 16, 17, 19 and 20 of each
of the
Mortgage Loan Purchase Agreements with respect to the Trust
Mortgage Loans;
and (v) the rights of the mortgagee under all Insurance Policies
with respect
to the Trust Mortgage Loans; provided that REMIC I shall not
include any
Non-Trust Loan or any successor REO Loan with respect thereto or
any payments
or other collections of principal, interest, Prepayment Premiums,
Yield
Maintenance Charges or other amounts collected on a Non-Trust Loan
or any
successor REO Loan with respect thereto.
"REMIC I Principal Balance": The principal amount of any REMIC
I
Regular Interest outstanding as of any date of determination. As of
the
Closing Date, the initial REMIC I Principal Balance of each REMIC I
Regular
Interest shall be the amount set forth as such in the Preliminary
Statement
hereto. On each Distribution Date, the REMIC I Principal Balance of
each REMIC
I Regular Interest shall be permanently reduced by all
distributions of
principal deemed to have been made in respect of such REMIC I
Regular Interest
on such Distribution Date pursuant to Section 4.01(h), and shall be
further
permanently reduced on such Distribution Date by all Realized
Losses and
Additional Trust Fund Expenses deemed to have been allocated
thereto on such
Distribution Date pursuant to Section 4.04(b). The REMIC I
Principal Balance
of a REMIC I Regular Interest shall be increased, pursuant to the
third
paragraph of Section 4.04(a), in connection with increases in the
Class
Principal Balance of the Corresponding Certificates as contemplated
by the
second paragraph of Section 4.04(a).
"REMIC I Regular Interest": Any of the separate
non-certificated
beneficial ownership interests in REMIC I issued hereunder and
designated as a
"regular interest" in REMIC I, as described in the Preliminary
Statement
hereto.
"REMIC II": The segregated pool of assets consisting of all of
the
REMIC I Regular Interests and all amounts held from time to time,
to the
extent related to REMIC II, in the Distribution Account conveyed in
trust to
the Trustee for the benefit of REMIC II, as holder of the REMIC I
Regular
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Interests, and the Holders of the Class R-II Certificates pursuant
to Section
2.07, with respect to which a separate REMIC election is to be
made.
"REMIC II Certificate": Any Class A-1, Class A-2, Class A-3,
Class
A-SB, Class A-4, Class A-1A, Class AM, Class AJ, Class B, Class C,
Class D,
Class XP, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class
M, Class N, Class P, Class Q, Class XC or Class R-II
Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating
to real estate mortgage investment conduits, which appear at
Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions,
and proposed, temporary and final Treasury regulations and any
published
rulings, notices and announcements promulgated thereunder, as the
foregoing
may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property,
gross
income of the character described in Section 856(d) of the
Code.
"REO Account": The Pool REO Account or any Loan Combination REO
Account, as applicable.
"REO Acquisition": The acquisition of any REO Property pursuant
to
Section 3.09.
"REO Disposition": The sale or other disposition of any REO
Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan (or, if a Loan Combination is
involved,
one of the Mortgage Loans comprising the subject Loan Combination)
deemed for
purposes hereof to be outstanding with respect to each REO
Property. Each REO
Loan shall be deemed to be outstanding for so long as the related
REO Property
(or an interest therein) remains part of REMIC I and shall be
deemed to
provide for periodic payments of principal and/or interest equal to
its
Assumed Periodic Payment and otherwise to have the same terms and
conditions
as its predecessor Mortgage Loan (such terms and conditions to be
applied
without regard to the default on such predecessor Mortgage Loan and
the
acquisition of the related REO Property as part of the Trust Fund
or, if
applicable in the case of any REO Property that relates to a Loan
Combination,
on behalf of the Trust and the related Non-Trust Noteholder(s)).
Each REO Loan
shall be deemed to have an initial unpaid principal balance and
Stated
Principal Balance equal to the unpaid principal balance and Stated
Principal
Balance, respectively, of its predecessor Mortgage Loan as of the
date of the
related REO Acquisition. All Periodic Payments (other than a
Balloon Payment),
Assumed Periodic Payments (in the case of a Balloon Loan delinquent
in respect
of its Balloon Payment) and other amounts due and owing, or deemed
to be due
and owing, in respect of the predecessor Mortgage Loan as of the
date of the
related REO Acquisition, shall be deemed to continue to be due and
owing in
respect of an REO Loan. Collections in respect of each REO Loan
(after
provision for amounts to be applied to the payment of, or to be
reimbursed to,
the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent for
the payment of, the costs of operating, managing, selling, leasing
and
maintaining the related REO Property or for the reimbursement of or
payment to
the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent for
other related Servicing Advances as provided in this Agreement,
interest on
such Advances and other related Additional Trust Fund Expenses)
shall be
treated: first, as a recovery of accrued and unpaid interest on
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such REO Loan at the related Mortgage Rate to but not including the
Due Date
in the Collection Period of receipt (exclusive of any portion
thereof that
constitutes Additional Interest); second, as a recovery of
principal of such
REO Loan to the extent of its entire unpaid principal balance; and
third, in
accordance with the normal servicing practices of the Master
Servicer, as a
recovery of any other amounts due and owing in respect of such REO
Loan,
including, without limitation, (i) Yield Maintenance Charges,
Prepayment
Premiums and Penalty Interest and (ii) Additional Interest and
other amounts,
in that order; provided, however, that if a Mortgage Loan that is
part of a
Loan Combination and the related Non-Trust Loan(s) become REO
Loans, amounts
received with respect to such REO Loans shall be applied to amounts
due and
owing in respect of such REO Loans as provided in the related Loan
Combination
Intercreditor Agreement. Notwithstanding the foregoing, all amounts
payable or
reimbursable to the Master Servicer, the Special Servicer, the
Trustee or any
Fiscal Agent, as the case may be, in respect of the predecessor
Mortgage Loan
as of the date of the related REO Acquisition, including, without
limitation,
any unpaid Servicing Fees and any unreimbursed Advances, together
with any
interest accrued and payable to the Master Servicer, the Special
Servicer, the
Trustee or any Fiscal Agent, as the case may be, in respect of such
Advances
in accordance with Sections 3.03(d) and 4.03(d), shall continue to
be payable
or reimbursable to the Master Servicer, the Special Servicer, the
Trustee or
any Fiscal Agent, as the case may be, in respect of an REO Loan
pursuant to
Section 3.05(a). In addition, Workout-Delayed Reimbursement Amounts
and
Nonrecoverable Advances with respect to such REO Loan, in each
case, that were
paid from collections on the Trust Mortgage Loans and resulted in
principal
distributed to the Certificateholders being reduced as a result of
the first
proviso in the definition of "Principal Distribution Amount", shall
be deemed
outstanding until recovered.
"REO Property": With respect to any Mortgage Loan (other than a
Mortgage Loan constituting part of a Loan Combination), a Mortgaged
Property
acquired on behalf and in the name of the Trust Fund for the
benefit of the
Certificateholders through foreclosure, acceptance of a
deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in
connection with
the default or imminent default of a Mortgage Loan; and with
respect to a Loan
Combination, the related Loan Combination REO Property.
"REO Revenues": All income, rents, profits and proceeds derived
from
the ownership, operation or leasing of any REO Property.
"REO Tax": As defined in Section 3.17(a)(i).
"Request for Release": A request signed by a Servicing Officer,
as
applicable, of the Master Servicer in the form of Exhibit D-1
attached hereto
or of the Special Servicer in the form of Exhibit D-2 attached
hereto.
"Required Appraisal": With respect to each Required Appraisal
Mortgage Loan, an appraisal of the related Mortgaged Property from
an
Independent Appraiser selected by the Special Servicer, prepared in
accordance
with 12 C.F.R. ss. 225.64 and conducted in accordance with the
standards of
the Appraisal Institute.
"Required Appraisal Mortgage Loan": Each Trust Mortgage Loan (or,
in
the case of clause (ii) below, any successor Trust REO Loan with
respect
thereto) (i) that is 60 days or more delinquent in respect of any
Periodic
Payments, (ii) that becomes an REO Loan, (iii) that has been
modified by the
Special Servicer in a manner that affects the amount or timing of
any Periodic
Payment (other than a Balloon Payment) (except, or in addition to,
bringing
monthly Periodic Payments current
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and extending the Maturity Date for less than six months), (iv) 60
days
following the receipt by the Special Servicer of notice that a
receiver has
been appointed and continues in such capacity in respect of the
related
Mortgaged Property, (v) 60 days following the receipt by the
Special Servicer
of notice that the related Mortgagor has become the subject of a
bankruptcy
proceeding, or (vi) delinquent in respect of any Balloon Payment
unless (x)
the related Mortgagor makes an Assumed Periodic Payment on each Due
Date
(commencing with the Due Date of such Balloon Payment) during the
period
contemplated in clause (y), and (y) the Master Servicer receives,
within 60
days after the Due Date of such Balloon Payment, written evidence
from an
institutional lender of such lender's binding commitment to
refinance such
Trust Mortgage Loan within 120 days after the Due Date of such
Balloon Payment
and either such 120-day period has not expired or it has not been
determined,
in accordance with the definition of "Specially Serviced Mortgage
Loan" that
the refinancing could not reasonably be expected to occur;
provided, however,
that a Required Appraisal Mortgage Loan will cease to be a Required
Appraisal
Mortgage Loan:
(a) with
respect to the circumstances described in clauses
(i) and (iii) above, when the related Mortgagor has made three
consecutive full and timely Periodic Payments under the terms of
such
Trust Mortgage Loan (as such terms may be changed or modified
in
connection with a bankruptcy or similar proceeding involving
the
related Mortgagor or by reason of a modification, waiver or
amendment
granted or agreed to by the Special Servicer pursuant to
Section
3.20); and
(b) with
respect to the circumstances described in clauses
(iv), (v) and (vi) above, when such circumstances cease to exist
in
the reasonable judgment of the Special Servicer (exercised in
accordance with the Servicing Standard), but, with respect to
any
bankruptcy or insolvency proceedings described in clauses (iv)
and
(v), no later than the entry of an order or decree dismissing
such
proceeding, and with respect to the circumstances described in
clause
(vi) above, no later than the date that the Special Servicer
agrees
to an extension pursuant to Section 3.20 hereof;
so long as at that time no circumstance identified in clauses (i)
through (vi)
above exists that would cause the Trust Mortgage Loan to continue
to be
characterized as a Required Appraisal Mortgage Loan. For purposes
of the
foregoing, the Westchester Loan Combination shall be treated as a
single
Mortgage Loan.
"Required Appraisal Value": With respect to any Mortgaged Property
or
REO Property related to a Required Appraisal Mortgage Loan, 90% of
an amount
equal to (A) subject to reduction by the Special Servicer in
accordance with
Section 3.09(a), the Appraised Value of such Mortgaged Property or
REO
Property, as the case may be, as determined by a Required Appraisal
or letter
update or internal valuation, if applicable, reduced by (B) the
amount of any
obligations secured by liens on such Mortgaged Property that are
prior to the
lien of such Required Appraisal Mortgage Loan and estimated
liquidation
expenses; provided, however, that for purposes of determining any
Appraisal
Reduction Amount in respect of such Required Appraisal Mortgage
Loan, such
Appraisal Reduction Amount shall be amended no less often than
annually to
reflect the Required Appraisal Value determined pursuant to any
Required
Appraisal or letter update of a Required Appraisal or internal
valuation, if
applicable conducted subsequent to the original Required Appraisal
performed
pursuant to Section 3.09(a).
"Reserve Account": The account or accounts created and
maintained
pursuant to Section 3.03(f).
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"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Mortgagor to be held in escrow by or on
behalf of the
mortgagee representing reserves for environmental remediation,
repairs,
capital improvements, tenant improvements and/or leasing
commissions with
respect to the related Mortgaged Property.
"Residual Certificate": A Class R-I or Class R-II Certificate.
"Responsible Officer": When used with respect to (i) the
initial
Trustee, any officer in the Global Securitization Trust Services
Group of the
Corporate Trust Department of the initial Trustee, (ii) any
successor Trustee,
any officer or assistant officer in the Corporate Trust Department
of the
Trustee, or any other officer or assistant officer of the Trustee
customarily
performing functions similar to those performed by any of the above
designated
officers to whom a particular matter is referred by the Trustee
because of
such officer's knowledge of and familiarity with the particular
subject, and
(iii) any Fiscal Agent or any officer thereof.
"Restricted Servicer Reports": Collectively, to the extent not
filed
with the Securities and Exchange Commission, the CMSA Servicer
Watch List, the
CMSA Operating Statement Analysis Report, the CMSA NOI Adjustment
Worksheet,
the CMSA Financial File, the CMSA Comparative Financial Status
Report, the
CMSA Loan Level Reserve/LOC Report and the CMSA Reconciliation of
Funds
Report.
"Rule 144A Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates, one or collectively more
global
certificates representing such Class registered in the name of the
Depository
or its nominee, in definitive, fully registered form without
interest coupons,
and each of which certificates has a Rule 144A CUSIP number.
"S&P": Standard & Poor's Ratings Services, a division of
The
McGraw-Hill Companies, Inc., or its successor in interest. If
neither such
Rating Agency nor any successor remains in existence, "S&P"
shall be deemed to
refer to such other nationally recognized statistical rating agency
or other
comparable Person designated by the Depositor, notice of which
designation
shall be given to the Trustee, the Master Servicer and the Special
Servicer,
and specific ratings of S&P herein referenced shall be deemed
to refer to the
equivalent ratings of the party so designated.
"Sarbanes-Oxley
Certification": As defined in Section 8.16(a)(iv).
"Scheduled Payment": With respect to any Mortgage Loan, for any
Due
Date following the Cut-off Date as of which it is outstanding, the
scheduled
Periodic Payment of principal and interest (other than Additional
Interest) on
such Mortgage Loan that is or would be, as the case may be, payable
by the
related Mortgagor on such Due Date under the terms of the related
Mortgage
Note as in effect on the Closing Date, without regard to any
subsequent change
in or modification of such terms in connection with a bankruptcy or
similar
proceeding involving the related Mortgagor or a modification,
waiver or
amendment of such Mortgage Loan granted or agreed to by the Special
Servicer
pursuant to Section 3.20 or acceleration of principal by reason of
default,
and assuming that each prior Scheduled Payment has been made in a
timely
manner; provided, however, that if the related loan documents for a
Loan
Combination provide for a single monthly debt service payment for
such Loan
Combination, then the Scheduled Payment for each Mortgage Loan
comprising such
Loan Combination for any Due Date shall be that portion of the
monthly debt
service payment for such Loan Combination and such Due Date that
is, in
accordance with the related loan documents and/or the related Loan
Combination
Intercreditor
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Agreement, in the absence of default, allocable to interest at the
related
Mortgage Rate on and/or principal of each such Mortgage Loan
comprising the
subject Loan Combination.
"Securities Act": The Securities Act of 1933, as amended.
"Securities and Exchange Commission": The United States
Securities
and Exchange Commission or any successor.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3,
Class
A-SB, Class A-4, Class A-1A, Class XC or Class XP Certificate.
"Sequential Pay Certificate": Any Class A-1, Class A-2, Class
A-3,
Class A-SB, Class A-4, Class A-1A, Class AM, Class AJ, Class B,
Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M,
Class N, Class P or Class Q Certificate.
"Servicing Account": The account or accounts created and
maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of
pocket" costs and expenses (including attorneys' fees and expenses
and fees of
real estate brokers) incurred by or on behalf of the Master
Servicer, the
Special Servicer, the Trustee or any Fiscal Agent in connection
with the
servicing of a Mortgage Loan, if a default is imminent thereunder
or after a
default, delinquency or other unanticipated event, or in connection
with the
administration of any REO Property, including, but not limited to,
the cost of
(a) compliance with the obligations of the Master Servicer and the
Special
Servicer, if any, set forth in Section 3.02 and 3.03, (b) (i) real
estate
taxes, assessments, penalties and other similar items, (ii) ground
rents (if
applicable), and (iii) premiums on Insurance Policies, in each
instance if and
to the extent Escrow Payments (if any) collected from the related
Mortgagor
are insufficient to pay such item when due and the related
Mortgagor has
failed to pay such item on a timely basis, (c) the preservation,
insurance,
restoration, protection and management of a Mortgaged Property,
including the
cost of any "force placed" insurance policy purchased by the Master
Servicer
or the Special Servicer to the extent such cost is allocable to a
particular
Mortgaged Property that the Master Servicer or the Special Servicer
is
required to cause to be insured pursuant to Section 3.07(a), (d)
obtaining any
Insurance Proceeds or any Liquidation Proceeds of the nature
described in
clauses (i)-(iii), (v), (vii) and (viii) of the definition of
"Liquidation
Proceeds," (e) any enforcement or judicial proceedings with respect
to a
Mortgaged Property, including, without limitation, foreclosures,
(f) any
Required Appraisal or other appraisal expressly required or
permitted to be
obtained hereunder, (g) the operation, management, maintenance and
liquidation
of any REO Property, including, without limitation, appraisals and
compliance
with Section 3.16(a) (to the extent not covered by available funds
in the
applicable REO Account), (h) obtaining related ratings confirmation
(to the
extent not paid by the related Mortgagor), (i) UCC filings (to the
extent not
reimbursed by the Mortgagor), (j) compliance with the obligations
of the
Master Servicer or the Trustee set forth in Section 2.03(a) or (b)
and (k) any
other expenditure expressly designated as a Servicing Advance under
this
Agreement. Notwithstanding anything to the contrary, "Servicing
Advances"
shall not include allocable overhead of the Master Servicer or the
Special
Servicer, such as costs for office space, office equipment,
supplies and
related expenses, employee salaries and related expenses and
similar internal
costs, and expenses or costs and expenses incurred by any such
party in
connection with its purchase of a Mortgage Loan or REO Property, or
costs or
expenses expressly required to be borne by the Master Servicer or
Special
Servicer without reimbursement pursuant to the terms of this
Agreement.
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"Servicing Fees": With respect to each Mortgage Loan and any
successor REO Loan with respect thereto, the Master Servicing Fee
and the
Special Servicing Fee.
"Servicing File": Any documents, certificates, opinions and
reports
(other than documents required to be part of the related Mortgage
File)
delivered by the related Mortgagor in connection with, or relating
to, the
origination and servicing of any Mortgage Loan, and that are
reasonably
required for the ongoing administration of the Mortgage Loan,
including
appraisals, surveys, property inspection reports, engineering
reports,
environmental reports, financial statements, leases, rent rolls and
tenant
estoppels.
"Servicing Officer": Any officer or employee of the Master
Servicer
or the Special Servicer involved in, or responsible for, the
administration
and servicing of the Mortgage Loans, whose name and specimen
signature appear
on a list of servicing officers furnished by such party to the
Trustee and the
Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing Standard": With respect to the Master Servicer or
the
Special Servicer, as applicable, the servicing and administration
of the
Mortgage Loans (including any Non-Trust Loans) for which it is
responsible
hereunder (a) in the same manner in which, and with the same care,
skill,
prudence and diligence with which, the Master Servicer or the
Special
Servicer, as the case may be, generally services and administers
similar
mortgage loans (i) for other third parties, giving due
consideration to
customary and usual standards of practice of prudent institutional
commercial
mortgage loan servicers servicing mortgage loans for third parties
or (ii)
held in its own portfolio, whichever standard is higher, (b) with a
view to
(i) the timely recovery of all Scheduled Payments of principal and
interest
under the Mortgage Loans, (ii) in the case of the Special Servicer,
if a
Mortgage Loan comes into and continues in default, the maximization
of the
recovery on that Mortgage Loan to the Certificateholders or, in the
case of
any Loan Combination, to the Certificateholders and the related
Non-Trust
Noteholder(s) (as a collective whole) on a net present value basis
(the
relevant discounting of anticipated collections to be performed at
the related
Mortgage Rate) and (iii) the best interests of the
Certificateholders and the
Trust Fund (or, in the case of any Loan Combination, the
Certificateholders,
the Trust Fund and the related Non-Trust Noteholder(s), taking into
account,
if applicable and to the extent consistent with the related Loan
Combination
Intercreditor Agreement and the related Mortgage Loan documents,
the
subordinate nature of the related B-Note Non-Trust Loan or the
related
Westchester Subordinate Non-Trust Loan(s), as the case may be), and
(c)
without regard to (i) any relationship that the Master Servicer or
the Special
Servicer, as the case may be, or any Affiliate thereof may have
with the
related Mortgagor (or any Affiliate thereof), the Depositor, any
Mortgage Loan
Seller, or any other party to the transactions contemplated hereby;
(ii) the
ownership of any Certificate by the Master Servicer or the Special
Servicer,
as the case may be, or by any Affiliate thereof; (iii) the right of
the Master
Servicer or the Special Servicer, as the case may be, to receive
compensation
or other fees for its services rendered pursuant to this Agreement;
(iv) the
obligations of the Master Servicer or the Special Servicer, as the
case may
be, to make Advances; (v) the ownership, servicing or management by
the Master
Servicer or the Special Servicer or any Affiliate thereof for
others of any
other mortgage loans or mortgaged property not included in or
securing, as the
case may be, the Mortgage Pool; (vi) any obligation of the Master
Servicer or
any Affiliate of the Master Servicer to repurchase or substitute a
Trust
Mortgage Loan as a Mortgage Loan Seller; (vii) any obligation of
the Master
Servicer or any Affiliate of the Master Servicer to cure a breach
of a
representation and warranty with respect to a Trust Mortgage Loan;
and (viii)
any debt the Master Servicer or Special Servicer or any Affiliate
of either
has extended to any Mortgagor or any Affiliate thereof.
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"Servicing Transfer Event": With respect to any Mortgage Loan,
the
occurrence of any of the events described in clauses (a) through
(g) of the
definition of "Specially Serviced Mortgage Loan".
"Significant Mortgage Loan": At any time of determination, any
Mortgage Loan that (1) has a principal balance of $20,000,000 or
more at the
time of determination or has, whether (a) individually, (b) as part
of a
Crossed Loan Group or (c) as part of a group of Mortgage Loans made
to
affiliated Mortgagors, a principal balance that is equal to or
greater than 5%
or more of the aggregate outstanding principal balance of the
Mortgage Pool at
the time of determination or (2) is one of the 10 largest Mortgage
Loans
(which for the purposes of this definition shall include Crossed
Loan Groups
and groups of Mortgage Loans made to affiliated Mortgagors) by
outstanding
principal balance at such time.
"Single Certificate": For purposes of Section 4.02, a
hypothetical
Certificate of any Class of Regular Certificates evidencing a
$1,000
denomination.
"Sole Certificate Owner": As defined in Section 9.01.
"Special Servicer": Midland Loan Services, Inc., or any successor
in
interest thereto, or any successor special servicer appointed as
herein
provided.
"Special Servicing Fee": With respect to each Specially
Serviced
Mortgage Loan and each REO Loan, the fee designated as such and
payable to the
Special Servicer pursuant to the first paragraph of Section
3.11(c).
Special Servicing Fee Rate": With respect to each Specially
Serviced
Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Designated Mortgage Loan Documents": With respect to
any
Trust Mortgage Loan, the following documents collectively:
(i) the
original executed Mortgage Note (or, alternatively, if the
original executed Mortgage Note has been lost, a lost note
affidavit and
indemnity with a copy of such Mortgage Note attached thereto);
(ii) an original
or a copy of the Mortgage (with or without recording
information);
(iii) the original or
a copy of the policy or certificate of lender's
title insurance or, if such policy has not been issued or located,
an
original or a copy of an irrevocable, binding commitment (which may
be a
pro
forma policy or a marked version of the policy that has been
executed
by
an authorized representative of the title company or an agreement
to
provide the same pursuant to binding escrow instructions executed
by an
authorized representative of the title company) to issue such
title
insurance policy;
(iv) an original
or a copy of any Ground Lease or ground lessor
estoppel; and
(v) a copy
of any letter of credit relating to the Trust Mortgage
Loan;
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provided that whenever the term "Specially Designated Mortgage Loan
Documents"
is used to refer to documents actually received by the Trustee or
by a
Custodian on its behalf, such term, with respect to any receipt
or
certification by the Trustee or a Custodian on its behalf for
documents
described in clauses (iv) and (v) of this definition, shall be
deemed to
include such documents only to the extent the Trustee or a
Custodian on its
behalf has actual knowledge of their existence.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which
any
of the following events have occurred:
(a) the
related Mortgagor shall have failed to make when due any
Periodic Payment, including a Balloon Payment, and the failure
continues
unremedied--
(i) except in
the case of a Balloon Payment, for 60 days; or
(ii)
solely in the case of a delinquent Balloon Payment, beyond
the day such Balloon Payment was due or (if longer) beyond
the applicable grace period for a Balloon Payment unless (x)
the related Mortgagor (A) makes in respect of each Due Date
(commencing with the Due Date of such Balloon Payment)
during the period contemplated in (B) below, without
omission, Assumed Periodic Payments and (B) delivers a
refinancing commitment within 60 days after such Mortgage
Loan's maturity date, then for such period (not to exceed
120 days) beyond such Mortgage Loan's maturity date ending
on the earlier of the date on which the related Mortgagor
fails to make an Assumed Periodic Payment or the date on
which it is determined that the refinancing could not
reasonably be expected to occur; or
(b) the
Master Servicer, or the Special Servicer (with the consent
of
the Controlling Class Representative), shall have determined, in
its
reasonable judgment (exercised in accordance with the Servicing
Standard), based on, among other things, communications with the
related
Mortgagor, that a default in making a Periodic Payment (including
a
Balloon Payment) is likely to occur and is likely to remain
unremedied
for
at least 60 days; or
(c) the
Master Servicer, or the Special Servicer (with the consent
of
the Controlling Class Representative), shall have determined, in
its
reasonable judgment (exercised in accordance with the Servicing
Standard), that a default (other than an Acceptable Insurance
Default or
a
default described in clause (a) above) has occurred that may
materially
impair the value of the Mortgaged Property as security for the
Mortgage
Loan
and the default continues unremedied beyond the applicable
grace
period under the terms of the Mortgage Loan (or, if no grace period
is
specified, for 60 days, provided that a default that gives rise to
an
acceleration right without any grace period shall be deemed to have
a
grace period equal to zero); or
(d) a
decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under
any
present or future federal or state bankruptcy, insolvency or
similar law
or
the appointment of a conservator or receiver or liquidator in
any
insolvency, readjustment of debt, marshaling of assets and
liabilities or
similar proceedings, or for the winding-up or liquidation of its
affairs,
shall have been entered against the related Mortgagor; provided
that if
such decree or order is
discharged, dismissed or stayed within 60
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days
it shall not be a Specially Serviced Mortgage Loan (and no
Special
Servicing Fees shall be payable); or
(e) the related Mortgagor shall
consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of
debt, marshaling of assets and liabilities or similar proceedings
of or
relating to such Mortgagor or of or relating to all or
substantially all
of
its property; or
(f) the
related Mortgagor shall admit in writing its inability to
pay
its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute,
make an
assignment for the benefit of its creditors, or voluntarily
suspend
payment of its obligations; or
(g) the
Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to
the
related Mortgaged Property;
provided, however, that a Mortgage Loan will cease to be a
Specially Serviced
Mortgage Loan:
(i) with
respect to the circumstances described in clause (a) above,
when
the related Mortgagor has made three consecutive full and
timely
Periodic Payments under the terms of such Mortgage Loan (as such
terms
may
be changed or modified in connection with a bankruptcy or
similar
proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the
Special
Servicer pursuant to Section 3.20);
(ii) with
respect to the circumstances described in clauses (b), (d),
(e)
and (f) above, when such circumstances cease to exist in the
reasonable judgment of the Special Servicer (exercised in
accordance with
the
Servicing Standard), but, with respect to any bankruptcy or
insolvency proceedings described in clauses (d), (e) and (f), no
later
than
the entry of an order or decree dismissing such proceeding;
(iii) with respect to
the circumstances described in clause (c)
above, when such default is cured; and
(iv) with
respect to the circumstances described in clause (g) above,
when
such proceedings are terminated;
so long as at that time no other circumstance identified in clauses
(a)
through (g) above exists that would otherwise cause such Mortgage
Loan to
continue to be characterized as a Specially Serviced Mortgage
Loan.
During any time an entire Loan Combination is serviced and
administered pursuant to this Agreement, if a Servicing Transfer
Event exists
with respect to one Mortgage Loan in such Loan Combination, it will
also be
considered to exist for the other Mortgage Loan(s) in such Loan
Combination;
provided that, in the case of the Westchester Loan Combination, if
a
Westchester Subordinate Noteholder prevents the occurrence of a
Servicing
Transfer Event with respect to the Westchester Trust Mortgage Loan
through the
exercise of cure rights as set forth in the Westchester
Intercreditor
Agreement, then the existence of such Servicing Transfer Event with
respect to
one or more of the Westchester Subordinate Non-Trust Loans shall
not, in and
of itself, result in the existence
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of a Servicing Transfer Event with respect to the Westchester Trust
Mortgage
Loan or cause the servicing of the Westchester Loan Combination to
be
transferred to the Special Servicer, unless a separate Servicing
Transfer
Event has occurred with respect thereto.
"Startup Day": With respect to each of REMIC I and REMIC II, the
day
designated as such in Section 10.01(c).
"State and Local Taxes": Taxes imposed by the states of New
York,
Maryland and Kansas and by any other state or local taxing
authorities as may,
by notice to the Trustee, assert jurisdiction over the Trust Fund
or any
portion thereof, or which, according to an Opinion of Counsel
addressed to the
Trustee, have such jurisdiction.
"Stated Maturity Date": With respect to any Mortgage Loan, the
Due
Date specified in the Mortgage Note (as in effect on the Closing
Date) on
which the last payment of principal is due and payable under the
terms of the
Mortgage Note (as in effect on the Closing Date), without regard to
any change
in or modification of such terms in connection with a bankruptcy or
similar
proceeding involving the related Mortgagor or a modification,
waiver or
amendment of such Mortgage Loan granted or agreed to by the Special
Servicer
pursuant to Section 3.20 and, in the case of an ARD Loan, without
regard to
its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Trust Mortgage
Loan
as of any date of determination, an amount (which amount shall not
be less
than zero) equal to (x) the Cut-off Date Balance of such Trust
Mortgage Loan
(or, in the case of a Qualified Substitute Mortgage Loan that is a
Trust
Mortgage Loan, the unpaid principal balance thereof after
application of all
principal payments due on or before the related date of
substitution, whether
or not received), permanently reduced on each Distribution Date, to
not less
than zero, by (y) the sum of:
(i) all
payments and other collections of principal, if any, with
respect to such Trust Mortgage Loan that are included as part of
the
Principal Distribution Amount for such Distribution Date pursuant
to
clause(s) (a), (b), (c) and/or (d) of, and without regard to the
provisos
to,
the definition of "Principal Distribution Amount";
(ii) any other
amount received with respect to such Trust Mortgage
Loan
during the related Collection Period that is not included among
the
payments and other collections of principal described in the
immediately
p
