MERRILL LYNCH MORTGAGE INVESTORS, INC.
Depositor
and
MIDLAND LOAN SERVICES, INC.
Master Servicer
and
LNR PARTNERS, INC.
Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION
Trustee
and
ABN AMRO BANK N.V.
Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2005
-------------------------
$2,056,750,308 (approximate)
Commercial Mortgage Pass-Through Certificates
Series 2005-CIP1
TABLE OF CONTENTS
<TABLE>
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01.
Defined
Terms..................................................................................6
SECTION 1.02.
Certain Adjustments to the Principal Distributions on the
Certificates........................79
ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01.
Conveyance of Trust Mortgage
Loans............................................................82
SECTION 2.02.
Acceptance of the Trust Fund by
Trustee.......................................................85
SECTION 2.03.
Mortgage Loan Seller's Repurchase or Substitution of Trust Mortgage
Loans for
Document Defects and Breaches of Representations and
Warranties.............................86
SECTION 2.04.
Representations and Warranties of
Depositor...................................................90
SECTION 2.05.
Acceptance of REMIC I by
Trustee..............................................................91
SECTION 2.06.
Execution, Authentication and Delivery of Class R-I
Certificates..............................92
SECTION 2.07.
Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by
Trustee....................92
SECTION 2.08.
Execution, Authentication and Delivery of REMIC II
Certificates...............................92
SECTION 2.09.
Execution, Authentication and Delivery of Class Z
Certificates................................92
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01.
Administration of the Mortgage
Loans..........................................................93
SECTION 3.02.
Collection of Mortgage Loan
Payments..........................................................94
SECTION 3.03.
Collection of Taxes, Assessments and Similar Items; Servicing
Accounts;
Reserve
Accounts............................................................................99
SECTION 3.04.
Collection Account, Interest Reserve Account, Additional Interest
Account,
Distribution Account, Gain-on-Sale Reserve Account and Loan
Combination
Custodial
Accounts.........................................................................104
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........................................................111
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.......................................................121
SECTION 3.07.
Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage................123
SECTION 3.08.
Enforcement of Alienation
Clauses............................................................127
SECTION 3.09.
Realization Upon Defaulted Mortgage Loans; Required
Appraisals...............................130
SECTION 3.10.
Trustee and Custodian to Cooperate; Release of Mortgage
Files................................134
SECTION 3.11.
Servicing
Compensation.......................................................................135
SECTION 3.12.
Property Inspections; Collection of Financial Statements; Delivery
of Certain
Reports....................................................................................141
SECTION 3.13.
Annual Statement as to
Compliance............................................................145
SECTION 3.14.
Reports by Independent Public
Accountants....................................................146
SECTION 3.15.
Access to Certain
Information................................................................146
SECTION 3.16.
Title to REO Property; REO
Accounts..........................................................150
SECTION 3.17.
Management of REO
Property...................................................................152
SECTION 3.18.
Resolution of Defaulted Mortgage Loans and REO
Properties....................................155
SECTION 3.19.
Additional Obligations of Master
Servicer....................................................162
SECTION 3.20.
Modifications, Waivers, Amendments and
Consents..............................................163
SECTION 3.21.
Transfer of Servicing Between Master Servicer and Special Servicer;
Record
Keeping....................................................................................169
SECTION 3.22.
Sub-Servicing
Agreements.....................................................................172
SECTION 3.23.
Representations and Warranties of Master Servicer and Special
Servicer.......................175
SECTION 3.24.
Sub-Servicing Agreement Representation and
Warranty..........................................177
SECTION 3.25.
Designation of Controlling Class
Representative..............................................177
SECTION 3.26.
Application of Default
Charges...............................................................179
SECTION 3.27.
Controlling Class Representative Contact with
Servicer.......................................180
SECTION 3.28.
Certain Matters Regarding the Loan
Combinations..............................................182
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01.
Distributions................................................................................184
SECTION 4.02.
Statements to
Certificateholders.............................................................195
SECTION 4.03.
P&I Advances; Reimbursement of P&I Advances and Servicing
Advances...........................199
SECTION 4.04.
Allocation of Realized Losses and Additional Trust Fund
Expenses.............................203
SECTION 4.05.
Calculations.................................................................................205
SECTION 4.06.
Use of
Agents................................................................................206
ARTICLE V
THE CERTIFICATES
SECTION 5.01.
The
Certificates.............................................................................207
SECTION 5.02.
Registration of Transfer and Exchange of
Certificates........................................207
SECTION 5.03.
Book-Entry
Certificates......................................................................214
SECTION 5.04.
Mutilated, Destroyed, Lost or Stolen
Certificates............................................215
SECTION 5.05.
Persons Deemed
Owners........................................................................216
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.................................217
SECTION 6.02.
Merger, Consolidation or Conversion of Depositor or Master Servicer
or Special
Servicer...................................................................................217
SECTION 6.03.
Limitation on Liability of the Depositor, the Master Servicer, the
Special
Servicer and
Others........................................................................217
SECTION 6.04.
Resignation of Master Servicer and the Special
Servicer......................................220
SECTION 6.05.
Rights of Depositor and Trustee in Respect of Master Servicer and
the Special
Servicer...................................................................................221
SECTION 6.06.
Depositor, Master Servicer and Special Servicer to Cooperate with
Trustee....................222
SECTION 6.07.
Depositor, Special Servicer and Trustee to Cooperate with Master
Servicer....................222
SECTION 6.08.
Depositor, Master Servicer and Trustee to Cooperate with Special
Servicer....................222
SECTION 6.09.
Designation of Special Servicer by the Controlling Class;
Termination of
Special Servicer With Respect to Westchester Trust Mortgage
Loan...........................222
SECTION 6.10.
Master Servicer or Special Servicer as Owner of a
Certificate................................225
SECTION 6.11.
The Controlling Class
Representative.........................................................225
SECTION 6.12.
Certain Matters with Respect to the Westchester Loan
Combination.............................228
ARTICLE VII
DEFAULT
SECTION 7.01.
Events of
Default............................................................................232
SECTION 7.02.
Trustee to Act; Appointment of
Successor.....................................................236
SECTION 7.03.
Notification to
Certificateholders...........................................................238
SECTION 7.04.
Waiver of Events of
Default..................................................................238
SECTION 7.05.
Additional Remedies of Trustee Upon Event of
Default.........................................238
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE FISCAL AGENT
SECTION 8.01.
Duties of
Trustee............................................................................239
SECTION 8.02.
Certain Matters Affecting
Trustee............................................................240
SECTION 8.03.
Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of
Certificates or Mortgage
Loans.............................................................241
SECTION 8.04.
Trustee and Fiscal Agent May Own
Certificates................................................242
SECTION 8.05.
Fees and Expenses of Trustee; Indemnification of
Trustee.....................................242
SECTION 8.06.
Eligibility Requirements for
Trustee.........................................................243
SECTION 8.07.
Resignation and Removal of
Trustee...........................................................243
SECTION 8.08.
Successor
Trustee............................................................................244
SECTION 8.09.
Merger or Consolidation of
Trustee...........................................................245
SECTION 8.10.
Appointment of Co-Trustee or Separate
Trustee................................................245
SECTION 8.11.
Appointment of
Custodians....................................................................246
SECTION 8.12.
Appointment of Authenticating
Agents.........................................................247
SECTION 8.13.
Access to Certain
Information................................................................248
SECTION 8.14.
Appointment of REMIC
Administrators..........................................................248
SECTION 8.15.
Representations, Warranties and Covenants of
Trustee.........................................249
SECTION 8.16.
Reports to the Securities and Exchange
Commission............................................250
SECTION 8.17.
Maintenance of Mortgage
File.................................................................255
SECTION 8.18.
The Fiscal
Agent.............................................................................255
SECTION 8.19.
Representations and Warranties of Fiscal
Agent...............................................256
ARTICLE IX
TERMINATION
SECTION 9.01.
Termination Upon Repurchase or Liquidation of All Trust Mortgage
Loans.......................258
SECTION 9.02.
Additional Termination
Requirements..........................................................261
SECTION 9.03.
Non-Serviced Trust Mortgage
Loans............................................................262
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01.
REMIC
Administration.........................................................................263
SECTION 10.02.
Grantor Trust
Administration.................................................................266
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01.
Amendment....................................................................................269
SECTION 11.02.
Recordation of Agreement;
Counterparts.......................................................271
SECTION 11.03.
Limitation on Rights of
Certificateholders...................................................271
SECTION 11.04.
Governing
Law................................................................................272
SECTION 11.05.
Notices......................................................................................272
SECTION 11.06.
Severability of
Provisions...................................................................274
SECTION 11.07.
Grant of a Security
Interest.................................................................274
SECTION 11.08.
Streit
Act...................................................................................274
SECTION 11.09.
Successors and Assigns;
Beneficiaries........................................................275
SECTION 11.10.
Article and Section
Headings.................................................................275
SECTION 11.11.
Notices to Rating
Agencies...................................................................275
SECTION 11.12.
Complete
Agreement...........................................................................277
</TABLE>
<TABLE>
EXHIBITS
Exhibit No.
Exhibit Description
-----------
-------------------
A-1
Form of Class A-1, A-2, A-3A, A-3B, A-SB and A-4 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
[RESERVED]
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 Serviced Mortgage Loans Requiring Operations and
Maintenance Plans
Exhibit No.
Exhibit Description
-----------
-------------------
U
Form of MLMT Series 2005-MCP1 Master Servicer Notice
V
List of Merrill Trust Mortgage Loans With Late Payment Charges Due
Prior to Expiration of Their Payment
Date Grace Periods
</TABLE>
POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement is dated and effective as
of August 1, 2005, among MERRILL LYNCH MORTGAGE INVESTORS, INC., as
Depositor,
MIDLAND LOAN SERVICES, INC., as Master Servicer, LNR PARTNERS ,
INC., as Special
Servicer, LASALLE BANK NATIONAL ASSOCIATION, as Trustee, and ABN
AMRO BANK N.V.,
as Fiscal Agent.
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>
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class of
Corresponding
Sequential Pay
Original Class
REMIC I
Initial REMIC I
Certificates
Principal Balance
Regular Interest(s)
Principal Balance
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class A-1
$
79,700,000
LA-1-1
$
4,290,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1-2
$
5,608,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1-3
$
39,248,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-1-4
$
30,554,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class of
Corresponding
Sequential Pay
Original Class
REMIC I
Initial REMIC I
Certificates
Principal Balance
Regular Interest(s)
Principal Balance
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class A-2
$
533,800,000
LA-2-1
$
14,706,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-2-2
$
44,696,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-2-3
$
43,665,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-2-4
$
43,236,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-2-5
$
42,462,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-2-6
$
257,006,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-2-7
$
88,029,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class A-3A
$
157,900,000
LA-3A-1
$
155,640,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-3A-2
$
2,260,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class A-3B
$
50,000,000
LA-3B-1
$
19,706,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-3B-2
$
18,670,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-3B-3
$
11,624,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class A-SB
$
108,000,000
LA-SB-1
$
8,460,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-SB-2
$
10,776,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-SB-3
$
88,764,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class A-4
$
510,325,000
LA-4-1
$
17,981,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-4-2
$
84,703,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-4-3
$
23,868,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-4-4
$
23,343,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LA-4-5
$
360,430,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class AM
$
205,675,000
LAM
$
205,675,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class AJ
$
138,830,000
LAJ
$
138,830,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
-2-
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class of
Corresponding
Sequential Pay
Original Class
REMIC I
Initial REMIC I
Certificates
Principal Balance
Regular Interest(s)
Principal Balance
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class B
$
43,706,000
LB
$
43,706,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class C
$
17,997,000
LC-1
$
6,252,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LC-2
$
11,745,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class D
$
38,564,000
LD-1
$
4,994,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LD-2
$
11,332,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LD-3
$
10,894,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LD-4
$
9,021,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LD-5
$
2,323,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class E
$
25,709,000
LE-1
$
6,474,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LE-2
$
12,467,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LE-3
$
6,768,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class F
$
33,423,000
LF-1
$
4,829,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LF-2
$
17,947,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LF-3
$
10,647,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class G
$
20,567,000
LG-1
$
6,810,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LG-2
$
13,757,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class H
$
25,709,000
LH-1
$
13,276,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LH-2
$
12,433,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class J
$
10,284,000
LJ-1
$
3,647,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
LJ-2
$
6,637,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class K
$
5,142,000
LK
$
5,142,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class L
$
7,713,000
LL
$
7,713,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
-3-
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class of
Corresponding
Sequential Pay
Original Class
REMIC I
Initial REMIC I
Certificates
Principal Balance
Regular Interest(s)
Principal Balance
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class M
$
7,713,000
LM
$
7,713,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class N
$
5,142,000
LN
$
5,142,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class P
$
5,141,000
LP
$
5,141,000
-------------------------- ------------------------
-------------------------------
----------------------------------------
Class Q
$
25,710,308
LQ
$
25,710,308
-------------------------- ------------------------
-------------------------------
----------------------------------------
</TABLE>
There exists one Trust Mortgage Loan, the Westchester Trust
Mortgage Loan, that has a Cut-off Date Balance of $100,000,000 and
is evidenced
by a Mortgage Note designated as "Amended and Restated Note A2",
which is part
of a loan group comprised of that Trust Mortgage Loan and several
other mortgage
loans, namely the Westchester Pari Passu Non-Trust Loan and the
Westchester
Subordinate Non-Trust Loans, that are all secured by the same
Mortgage
encumbering the Westchester Mortgaged Property. The Westchester
Pari Passu
Non-Trust Loan, which is pari passu in right of payment and in
other respects
with the Westchester Trust Mortgage Loan, has a Cut-off Date
Balance of
$200,000,000 and is evidenced by a Mortgage Note designated as
"Amended and
Restated Note A1". The Westchester Pari Passu Non-Trust Mortgage
Loan, which
will not be included in the Trust Fund, is, as of the Closing Date,
included in
a commercial mortgage securitization (the "MLMT Series 2005-MCP1
Securitization") involving the issuance of the Merrill Lynch
Mortgage Trust
2005-MCP1, Commercial Mortgage Pass-Through Certificates, Series
2005-MCP1. The
Westchester Trust Mortgage Loan, the Westchester Pari Passu
Non-Trust Loan and
the Westchester Subordinate Non-Trust Loans collectively constitute
the
Westchester Loan Combination. The relative rights of the holder of
the
Westchester Trust Mortgage Loan and the respective holders of the
Westchester
Non-Trust Loans are set forth in the Westchester Intercreditor
Agreement. As of
the Closing Date, the entire Westchester Loan Combination is being,
and will
continue to be, serviced and administered in accordance with the
Pooling and
Servicing Agreement, dated as of June 1, 2005 (the "MLMT Series
2005-MCP1
Pooling and Servicing Agreement"), between Merrill Lynch Mortgage
Investors,
Inc., as depositor, Midland Loan Services, Inc., as master servicer
(in such
capacity, the "MLMT Series 2005-MCP1 Master Servicer") and as
special servicer
(in such capacity, the "MLMT Series 2005-MCP1 Special Servicer")
and Wells Fargo
Bank, N.A., as trustee (in such capacity, the "MLMT Series
2005-MCP1 Trustee").
Accordingly, the Westchester Trust Mortgage Loan, although
part of the Trust Fund, will be serviced and administered in
accordance with the
MLMT Series 2005-MCP1 Pooling and Servicing Agreement by the MLMT
Series
2005-MCP1 Master Servicer and the MLMT Series 2005-MCP1 Special
Servicer for so
long as the Westchester Pari Passu Non-Trust Loan is part of the
trust fund
created in connection with the MLMT Series 2005-MCP1
Securitization.
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
-4-
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, the
Trustee and the
Fiscal Agent agree as follows:
-5-
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.
"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. THERE ARE NO A-NOTE TRUST
MORTGAGE LOANS IN
THE TRUST Fund.
"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 Serviced
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 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
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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
"LaSalle Bank National Association as Trustee, in trust for the
registered
holders of Merrill Lynch Mortgage Trust 2005-CIP1, Commercial
Mortgage
Pass-Through Certificates, Series 2005-CIP1, 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.
"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 the 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), (xviii) 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
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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"), 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, pursuant to
Section
4.01(a), and the denominator of which is equal to the Principal
Distribution
Amount for such Distribution Date.
"Administered REO Property": Any REO Property other than any
Westchester REO Property.
"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,
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"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 Serviced 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 the
Fiscal Agent may conclusively rely on any Appraisal obtained in
accordance with
this Agreement and, in the case of the Westchester Trust Mortgage
Loan or any
successor Trust REO Loan with respect thereto, any appraisal
obtained in
accordance with the MLMT Series 2005-MCP1 Pooling and Servicing
Agreement.
"Appraisal Reduction Amount": With respect to any Required
Appraisal Mortgage Loan, the excess, if any, of: (a) an amount, as
calculated by
the Special Servicer in consultation with the Controlling Class
Representative
(or, in the case of the Westchester Loan Combination if it is being
serviced
hereunder pursuant to Section 3.28, in consultation with the
Westchester
Controlling Party), as of the first Determination Date immediately
succeeding
the date on which the Special 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 it is being
serviced
hereunder pursuant to Section 3.28, 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
Special Servicer, the Trustee or the Fiscal Agent, all unpaid
interest accrued
on such Required Appraisal Mortgage Loan through the most recent
Due 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 the
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 it is
being serviced
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hereunder pursuant to Section 3.28, 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 the foregoing, any "Appraisal Reduction
Amount" (as defined under the MLMT Series 2005-MCP1 Pooling and
Servicing
Agreement) with respect to any Westchester Loan Combination shall
be calculated,
and allocated among the respective Mortgage Loans comprising such
Loan
Combination, by the MLMT Series 2005-MCP1 Applicable Servicer
pursuant to the
MLMT Series 2005-MCP1 Pooling and Servicing Agreement; and the
parties hereto
shall be entitled to rely on such calculations and the allocations
to the
Westchester Trust Mortgage Loan or any successor Trust REO Loan
with respect
thereto, as reported to them by the MLMT Series 2005-MCP1
Applicable Servicer.
Notwithstanding anything herein to the contrary, if the
Westchester Loan Combination is being serviced hereunder pursuant
to Section
3.28, 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 Serviced Mortgaged
Property and Administered 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 the Fiscal
Agent may
conclusively rely; provided, that the term "Appraised Value" shall
include any
value determined by the MLMT Series 2005-MCP1 Applicable Servicer
with respect
to the Westchester Trust Mortgage Loan (upon which the Master
Servicer, the
Special Servicer, the Trustee and the 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, in the case of any Trust REO
Loan that is a
successor to the Westchester Trust Mortgage Loan, any interest in
the related
REO Property) 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 the 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), (xviii),
(xix) and (xxi) of Section 3.05(a) or (B) the Distribution Account
pursuant to
clauses (ii)-(vi) and (ix) of
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Section 3.05(b), (iii) Prepayment Premiums and Yield Maintenance
Charges, (iv)
Additional Interest, (v) with 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. FOR PURPOSES OF THIS AGREEMENT, THERE
SHALL BE NO
B-NOTE NON-TRUST LOANS.
"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 Chicago,
Illinois), 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 Miami Beach, Florida), are located, are
authorized or
obligated by law or executive order to remain closed.
"Casualty/Condemnation Interest Shortfall": With respect to
any Serviced 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 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
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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 Serviced 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-CIP1, Commercial Mortgage Pass-Through Certificates, Series
2005-CIP1, 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 Depositor, any Mortgage Loan Seller, the
Master Servicer,
the Special Servicer, the Trustee or the Fiscal
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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 the 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-3A, Class A-3B, Class A-SB and Class A-4 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-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-3A Certificate": Any one of the Certificates with a
"Class A-3A" 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-3B Certificate": Any one of the Certificates with a
"Class A-3B" 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.
-14-
"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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"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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"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.
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"Class XP Notional Amount":
(i) With respect to any Distribution Date on or prior to the
Distribution Date in February 2006, the sum of (a) the lesser of
$75,410,000 and the Class Principal Balance of the Class A-1
Certificates outstanding from time to time, and (b) the Class
Principal
Balance of the Class A-2, Class A-3A, Class A-3B, 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 February 2006 through and including the
Distribution Date in August 2006, the sum of (a) the lesser of
$69,802,000 and the Class Principal Balance of the Class A-1
Certificates outstanding from time to time, and (b) the Class
Principal
Balance of the Class A-2, Class A-3A, Class A-3B, 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 August 2006 through and including the
Distribution
Date in February 2007, the sum of (a) the lesser of $30,554,000 and
the
Class Principal Balance of the Class A-1 Certificates outstanding
from
time to time, and (b) the Class Principal Balance of the Class A-2,
Class A-3A, Class A-3B, 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 February 2007 through and including the
Distribution Date in August 2007, the sum of (a) the lesser of
$519,094,000 and the Class Principal Balance of the Class A-2
Certificates outstanding from time to time, and (b) the Class
Principal
Balance of the Class A-3A, Class A-3B, 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 August 2007 through and including the
Distribution
Date in February 2008, the sum of (a) the lesser of $474,398,000
and
the Class Principal Balance of the Class A-2 Certificates
outstanding
from time to time, (b) the Class Principal Balance of the Class
A-3A,
Class A-3B, Class A-SB, Class A-4, Class AM, Class AJ, Class B,
Class
C, Class D, Class E, Class F, Class G and Class H Certificates
outstanding from time to time, and (c) the lesser of $6,637,000 and
the
Class Principal Balance of the Class J Certificates outstanding
from
time to time;
(vi) With respect to any Distribution Date after the
Distribution Date in February 2008 through and including the
Distribution Date in August 2008, the sum of (a) the lesser of
$430,733,000 and the Class Principal Balance of the Class A-2
Certificates outstanding from time to time, (b) the Class Principal
Balance of the Class A-3A, Class A-3B, 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 (c) the lesser of
$12,433,000 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 August 2008 through and including the
Distribution
Date in February 2009, the sum of (a) the lesser of
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$387,497,000 and the Class Principal Balance of the Class A-2
Certificates outstanding from time to time, (b) the Class Principal
Balance of the Class A-3A, Class A-3B, 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 (c) the lesser of $13,757,000
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 February 2009 through and including the
Distribution Date in August 2009, the sum of (a) the lesser of
$345,035,000 and the Class Principal Balance of the Class A-2
Certificates outstanding from time to time, (b) the Class Principal
Balance of the Class A-3A, Class A-3B, Class A-SB, Class A-4, Class
AM,
Class AJ, Class B, Class C, Class D and Class E Certificates
outstanding from time to time, and (c) the lesser of $28,594,000
and
the Class Principal Balance of the Class F Certificates outstanding
from time to time;
(ix) With respect to any Distribution Date after the
Distribution Date in August 2009 through and including the
Distribution
Date in February 2010, the sum of (a) the lesser of $88,029,000 and
the
Class Principal Balance of the Class A-2 Certificates outstanding
from
time to time, (b) the Class Principal Balance of the Class A-3A,
Class
A-3B, Class A-SB, Class A-4, Class AM, Class AJ, Class B, Class C,
Class D and Class E Certificates outstanding from time to time, and
(c)
the lesser of $ 10,647,000 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 February 2010 through and including the
Distribution Date in August 2010, the sum of (a) the lesser of
$2,260,000 and the Class Principal Balance of the Class A-3A
Certificates outstanding from time to time, (b) the Class Principal
Balance of the Class A-3B, Class A-SB, Class A-4, Class AM, Class
AJ,
Class B, Class C and Class D Certificates outstanding from time to
time, and (c) the lesser of $19,235,000 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 August 2010 through and including the
Distribution
Date in February 2011, the sum of (a) the lesser of $30,294,000 and
the
Class Principal Balance of the Class A-3B Certificates outstanding
from
time to time, (b) the lesser of $99,540,000 and the total principal
balance of the Class A-SB 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 $6,768,000 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 February 2011 through and including the
Distribution Date in August 2011, the sum of (a) the lesser of
$11,624,000 and the Class Principal Balance of the Class A-3B
Certificates outstanding from time to time, (b) the lesser of
$88,764,000 and the total principal balance of the Class A-SB
Certificates outstanding from time to time, (c) the Class Principal
Balance of the Class A-4, Class AM, Class AJ, Class B and Class C
Certificates outstanding from time to time, and (d) the lesser of
$33,570,000 and the Class Principal Balance of the Class D
Certificates
outstanding from time to time;
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(xiii) With respect to any Distribution Date after the
Distribution Date in August 2011 through and including the
Distribution
Date in February 2012, the sum of (a) the lesser of $492,344,000
and
the Class Principal Balance of the Class A-4 Certificates
outstanding
from time to time, (b) the Class Principal Balance of the Class AM,
Class AJ, Class B and Class C Certificates outstanding from time to
time, and (c) the lesser of $22,238,000 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 February 2012 through and including the
Distribution Date in August 2012, the sum of (a) the lesser of
$407,641,000 and the Class Principal Balance of the Class A-4
Certificates outstanding from time to time, (b) the Class Principal
Balance of the Class AM, Class AJ, Class B and Class C Certificates
outstanding from time to time, and (c) the lesser of $11,344,000
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 August 2012 through and including the
Distribution
Date in February 2013, the sum of (a) the lesser of $383,773,000
and
the Class Principal Balance of the Class A-4 Certificates
outstanding
from time to time, (b) the Class Principal Balance of the Class AM,
Class AJ, Class B and Class C Certificates outstanding from time to
time, and (c) the lesser of $2,323,000 and the Class Principal
Balance
of the Class D Certificates outstanding from time to time;
(xvi) With respect to any Distribution Date after the
Distribution Date in February 2013 through and including the
Distribution Date in August 2013, the sum of (a) the lesser of
$360,430,000 and the Class Principal Balance of the Class A-4
Certificates outstanding from time to time, (b) the Class Principal
Balance of the Class AM, Class AJ and Class B Certificates
outstanding
from time to time, and (c) the lesser of $11,745,000 and the Class
Principal Balance of the Class C Certificates outstanding from time
to
time; and
(xvii) With respect to any Distribution Date after the
Distribution Date in August 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.
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"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":
August 24, 2005.
"Closing Date Deposit": With respect to PNC Bank, National
Association, a cash amount to be deposited by such Mortgage Loan
Seller, as
applicable, pursuant to the PNC Mortgage Loan Purchase Agreement,
in respect of
each Trust Mortgage Loan (that is one of the Trust Mortgage Loans
identified as
loan numbers 52, 67, 103, 122, 125, 132, 133 and 135 on the
Mortgage Loan
Schedule) sold by such Mortgage Loan Seller to the Depositor that
does not have
its first Scheduled Payment due until September 2005, which cash
amount
represents the aggregate amount of interest that would have accrued
during the
entire month of August 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
$41,630.03,
$34,958.79, $21,357.75, $14,562.31, $11,207.71, $8,395.81,
$8,423.98 and
$3,818.87, respectively.
"Closing Date Deposit Mortgage Loan": Any Trust Mortgage Loan
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 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
-21-
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.
"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.
-22-
"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 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
-23-
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 LaSalle Bank
National
Association, as Trustee, on behalf of and in trust for the
registered holders of
Merrill Lynch Mortgage Trust 2005-CIP1, Commercial Mortgage
Pass-Through
Certificates, Series 2005-CIP1".
"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 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, the
Countrywide
Trust Mortgage Loans, the IXIS Trust Mortgage Loans and/or the PNC
Trust
Mortgage Loans, as applicable.
"Component": Any of the 52 components of the Class XC
Certificates (the "Class XC Components") and the 47 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>
---------------------- ------------------- ------------------------
------------------------
Class Designation of
Class XC
Class XP
Class XP
Corresponding
Component
Component
Termination Date
Certificates
---------------------- ------------------- ------------------------
------------------------
XC-A-1-1
N/A
N/A
A-1
---------------------- ------------------- ------------------------
------------------------
XC-A-1-2
XP-A-1-2
February 2006
A-1
---------------------- ------------------- ------------------------
------------------------
XC-A-1-3
XP-A-1-3
August 2006
A-1
---------------------- ------------------- ------------------------
------------------------
XC-A-1-4
XP-A-1-4
February 2007
A-1
---------------------- ------------------- ------------------------
------------------------
XC-A-2-1
XP-A-2-1
February 2007
A-2
---------------------- ------------------- ------------------------
------------------------
</TABLE>
-24-
<TABLE>
---------------------- ------------------- ------------------------
------------------------
Class Designation of
Class XC
Class XP
Class XP
Corresponding
Component
Component
Termination Date
Certificates
---------------------- ------------------- ------------------------
------------------------
XC-A-2-2
XP-A-2-2
August 2007
A-2
---------------------- ------------------- ------------------------
------------------------
XC-A-2-3
XP-A-2-3
February 2008
A-2
---------------------- ------------------- ------------------------
------------------------
XC-A-2-4
XP-A-2-4
August 2008
A-2
---------------------- ------------------- ------------------------
------------------------
XC-A-2-5
XP-A-2-5
February 2009
A-2
---------------------- ------------------- ------------------------
------------------------
XC-A-2-6
XP-A-2-6
August 2009
A-2
---------------------- ------------------- ------------------------
------------------------
XC-A-2-7
XP-A-2-7
February 2010
A-2
---------------------- ------------------- ------------------------
------------------------
XC-A-3A-1
XP-A-3A-1
February 2010
A-3
---------------------- ------------------- ------------------------
------------------------
XC-A-3A-2
XP-A-3A-2
August 2010
A-3
---------------------- ------------------- ------------------------
------------------------
XC-A-3B-1
XP-A-3B-1
August 2010
A-3
---------------------- ------------------- ------------------------
------------------------
XC-A-3B-2
XP-A-3B-2
February 2011
A-3
---------------------- ------------------- ------------------------
------------------------
XC-A-3B-3
XP-A-3B-3
August 2011
A-3
---------------------- ------------------- ------------------------
------------------------
XC-A-SB-1
XP-A-SB-1
August 2010
A-SB
---------------------- ------------------- ------------------------
------------------------
XC-A-SB-2
XP-A-SB-2
February 2011
A-SB
---------------------- ------------------- ------------------------
------------------------
XC-A-SB-3
XP-A-SB-3
August 2011
A-SB
---------------------- ------------------- ------------------------
------------------------
XC-A-4-1
XP-A-4-1
August 2011
A-4
---------------------- ------------------- ------------------------
------------------------
XC-A-4-2
XP-A-4-2
February 2012
A-4
---------------------- ------------------- ------------------------
------------------------
XC-A-4-3
XP-A-4-3
August 2012
A-4
---------------------- ------------------- ------------------------
------------------------
XC-A-4-4
XP-A-4-4
February 2013
A-4
---------------------- ------------------- ------------------------
------------------------
XC-A-4-5
XP-A-4-5
August 2013
A-4
---------------------- ------------------- ------------------------
------------------------
XC-AM
XP-AM
August 2013
AM
---------------------- ------------------- ------------------------
------------------------
XC-AJ
XP-AJ
August 2013
AJ
---------------------- ------------------- ------------------------
------------------------
XC-B
XP-B
August 2013
B
---------------------- ------------------- ------------------------
------------------------
XC-C-1
XP-C-1
February 2013
C
---------------------- ------------------- ------------------------
------------------------
XC-C-2
XP-C-2
August 2013
C
---------------------- ------------------- ------------------------
------------------------
XC-D-1
XP-D-1
February 2011
D
---------------------- ------------------- ------------------------
------------------------
XC-D-2
XP-D-2
August 2011
D
---------------------- ------------------- ------------------------
------------------------
XC-D-3
XP-D-3
February 2012
D
---------------------- ------------------- ------------------------
------------------------
XC-D-4
XP-D-4
August 2012
D
---------------------- ------------------- ------------------------
------------------------
XC-D-5
XP-D-5
February 2013
D
---------------------- ------------------- ------------------------
------------------------
XC-E-1
XP-E-1
February 2010
E
---------------------- ------------------- ------------------------
------------------------
XC-E-2
XP-E-2
August 2010
E
---------------------- ------------------- ------------------------
------------------------
XC-E-3
XP-E-3
February 2011
E
---------------------- ------------------- ------------------------
------------------------
XC-F-1
XP-F-1
February 2009
F
---------------------- ------------------- ------------------------
------------------------
XC-F-2
XP-F-2
August 2009
F
---------------------- ------------------- ------------------------
------------------------
XC-F-3
XP-F-3
February 2010
F
---------------------- ------------------- ------------------------
------------------------
XC-G-1
XP-G-1
August 2008
G
---------------------- ------------------- ------------------------
------------------------
XC-G-2
XP-G-2
February 2009
G
---------------------- ------------------- ------------------------
------------------------
XC-H-1
XP-H-1
February 2008
H
---------------------- ------------------- ------------------------
------------------------
XC-H-2
XP-H-2
August 2008
H
---------------------- ------------------- ------------------------
------------------------
XC-J-1
XP-J-1
August 2007
J
---------------------- ------------------- ------------------------
------------------------
XC-J-2
XP-J-2
February 2008
J
---------------------- ------------------- ------------------------
------------------------
</TABLE>
-25-
<TABLE>
---------------------- ------------------- ------------------------
------------------------
Class Designation of
Class XC
Class XP
Class XP
Corresponding
Component
Component
Termination Date
Certificates
---------------------- ------------------- ------------------------
------------------------
XC-K
XP-K
August 2007
K
---------------------- ------------------- ------------------------
------------------------
XC-L
XP-L
August 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.
"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 135 South LaSalle Street,
Suite 1625,
Chicago, Illinois 60603, Attention: Global Securities and Trust
Services
Group--Merrill Lynch Mortgage Trust 2005-CIP1, Commercial Mortgage
Pass-Through
Certificates, Series 2005-CIP1.
"Corrected Mortgage Loan": Any Serviced 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". Unless it is serviced hereunder pursuant to Section
3.28, the
Westchester Trust Mortgage Loan shall not constitute a Corrected
Mortgage Loan
under this Agreement.
"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".
-26-
"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 August 11, 2005,
between the
Depositor and Countrywide and relating to the transfer of the
Countrywide Trust
Mortgage Loans to the Depositor.
"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
August 2005,
the related Due Date of such Mortgage Loan in August 2005; or, with
respect to
any Mortgage Loan that was originated in July or August 2005 and
has the Due
Date of its first Scheduled Payment in September 2005, August 1,
2005; or, with
respect to any Mortgage Loan that was originated in August 2005 and
has the Due
Date of its first Scheduled Payment in October 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.
"DBRS": Dominion Bond Rating Service, Inc. or its successor in
interest. If neither such Rating Agency nor any successor remains
in existence,
"DBRS" shall be deemed to refer to such other nationally recognized
statistical
rating organization or other comparable Person designated by the
-27-
Depositor, notice of which designation shall be given to the
Trustee, the Master
Servicer and the Special Servicer and the Fiscal Agent, and
specific ratings of
DBRS herein referenced shall be deemed to refer to the equivalent
ratings of the
party so designated.
"Debt Service Coverage Ratio": With respect to any 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, in the case of a Qualified Substitute Mortgage Loan, prior to
the relevant
date of determination) or the Master Servicer or the Special
Servicer or, in the
case of the Westchester Trust Mortgage Loan, the MLMT Series
2005-MCP1
Applicable 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 (if it is
serviced hereunder pursuant to Section 3.28), 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 Serviced 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 one day in respect
of its
Balloon Payment or, if the Master Servicer receives, prior to the
Due Date of
such Balloon Payment, written evidence from an institutional lender
of such
lender's binding commitment to refinance such Mortgage Loan, for
such longer
period beyond the Due Date ending on the earlier of (1) 60 days
after the Due
Date of such Balloon Payment and (2) the expiration of the
refinancing
commitment, 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, a
valuation by a court of competent jurisdiction of the Mortgaged
Property in an
amount less than (i) in the case of a Trust Mortgage Loan other
than the
Westchester Trust Mortgage Loan, the then outstanding principal
balance of such
Mortgage Loan, and (ii) in the case of the Westchester Trust
Mortgage Loan, the
then-aggregate outstanding principal balance of such Mortgage Loan
and the
Westchester Pari Passu Non-Trust Loan,
-28-
which valuation results from a proceeding initiated under the
Bankruptcy Code.
With respect to any Mortgage Loan in the Westchester Loan
Combination other than
the Westchester Trust Mortgage Loan, if the Westchester Loan
Combination is
being serviced hereunder pursuant to Section 3.28, a valuation by a
court of
competent jurisdiction of the Mortgaged Property 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 each Mortgage Loan that has a Due Date on or prior to
the fourth
Business Day prior to such Distribution Date, the fourth Business
Day prior to
such Distribution Date, (ii) with respect to the Westchester Trust
Mortgage
Loan, the Westchester Early Remittance Date and (iii) with respect
to each other
Mortgage Loan, the Due Date for such Mortgage Loan in the month in
which such
Distribution Date occurs. 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 Mortgage Pool.
"Determination Information": As defined in Section 3.18(b).
"Directly Operate": With respect to any Administered REO
Property, the furnishing or rendering of services to the tenants
thereof, the
management of such Administered REO Property, the holding of such
Administered
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
Administered 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
Administered REO Property.
-29-
"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 (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.
-30-
"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 "LaSalle Bank National Association, as Trustee, in trust
for the
registered holders of Merrill Lynch Mortgage Trust 2005-CIP1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-CIP1".
"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 September 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 DBRS
(if then rated by DBRS and, if not so rated, then the equivalent
rating by two
other nationally recognized statistical rating organizations, which
may include
Fitch and Moody's), "AA" by Fitch and "Aa3" by Moody's (if then
rated by
Moody's) (or, with respect to any such Rating Agency, such lower
rating as will
not result in an 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 "R-1" by DBRS (if then rated
by DBRS and,
if not so rated, then the equivalent rating by two other nationally
recognized
statistical rating
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organizations, which may include Fitch and Moody's), "F-1" by Fitch
and "P-1" by
Moody's (if then rated by Moody's) (or, with respect to any such
Rating Agency,
such lower rating as will not result in an 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 "F-1" from Fitch and (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, (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,
as confirmed
in writing by each Rating Agency.
"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 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).
"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 a Serviced
Mortgage Loan or Serviced 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).
"Exchange Act": Securities Exchange Act of 1934, as amended.
"Excluded Class": Any Class of Sequential Pay Certificates
other than the Class A-1, Class A-2, Class A-3A, Class A-3B, Class
A-SB, Class
A-4, Class AM, Class AJ, Class B, Class C, Class D, Class E, Class
F, Class G
and Class H Certificates.
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"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 Administered 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 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 a Westchester Subordinate Noteholder (in the case of the
Westchester Trust
Mortgage Loan) pursuant to the Westchester 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); provided that the term
"Final
Recovery Determination" shall include any comparable determination
made by the
MLMT Series 2005-MCP1 Special Servicer pursuant to the MLMT Series
2005-MCP1
Pooling and Servicing Agreement with respect to the Westchester
Trust Mortgage
Loan or any related Westchester REO Property.
"Fiscal Agent": ABN AMRO Bank N.V., its successor in interest,
or any successor fiscal agent appointed as herein provided.
"Fitch": Fitch, Inc. or its successor in interest. If neither
such Rating Agency nor any successor remains in existence, "Fitch"
shall be
deemed to refer to such other nationally recognized statistical
rating
organization or other comparable Person designated by the
Depositor, notice of
which designation shall be given to the Trustee, the Master
Servicer, the
Special Servicer and the Fiscal Agent, 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.
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"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)
and, in the
case of the Westchester Trust Mortgage Loan or any related
Westchester REO
Property, to the MLMT Series 2005-MCP1 Applicable Servicer, 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 "LaSalle Bank National Association, as
Trustee, in trust
for the registered holders of Merrill Lynch Mortgage Trust
2005-CIP1, Commercial
Mortgage Pass-Through Certificates, Series 2005-CIP1, Gain-on-Sale
Reserve
Account".
"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.
"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,
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and specifically including, without limitation, asbestos and
asbestos-containing
materials, polychlorinated biphenyls ("PCBs"), radon gas, petroleum
and
petroleum products and urea formaldehyde.
"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, the 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, the 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, the 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, the 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, the 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, the Fiscal Agent or
the Trust Fund,
delivered to the Trustee (and, if a Loan Combination is involved,
to the related
Non-Trust Noteholder(s)), provided that (i) such REMIC does not
receive or
derive any income from such Person and (ii) the 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, the Fiscal
Agent or the
Trust Fund, to the effect that the taking of any action in respect
of any
Administered REO
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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 "LaSalle Bank National Association, as Trustee, on
behalf of and in
trust for the registered holders of Merrill Lynch Mortgage Trust
2005-CIP1,
Commercial Mortgage Pass-Through Certificates, Series 2005-CIP1".
"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.
"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.
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"Internet Website": Either the Internet website maintained by
the Trustee (located at "www.etrustee.net" 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.
"IXIS": IXIS Real Estate Capital Inc., a New York corporation,
or its successor in interest.
"IXIS Mortgage Loan Purchase Agreement": That certain mortgage
loan purchase agreement, dated as of August 11, 2005, between the
Depositor and
IXIS and relating to the transfer of the IXIS Trust Mortgage Loans
to the
Depositor.
"IXIS Trust Mortgage Loans": Each of the Trust Mortgage Loans
transferred and assigned to the Depositor pursuant to the IXIS
Mortgage Loan
Purchase Agreement.
"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 a
Westchester
Subordinate Noteholder (in the case of the Westchester Trust
Mortgage Loan)
pursuant to the related Loan Combination Intercreditor Agreement;
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(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 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 Serviced 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 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
received from the
MLMT Series 2005-MCP1 Special Servicer to cover losses and expenses
with respect
to the Westchester Trust Mortgage Loan or, if the Westchester Loan
Combination
is serviced hereunder pursuant to Section 3.28, 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(d), 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. FOR PURPOSES OF THIS
AGREEMENT, THE ONLY
LOAN COMBINATION IS THE WESTCHESTER LOAN COMBINATION, WHICH IS
COMPRISED OF
MORTGAGE LOANS THAT ARE NOT SERVICED MORTGAGE LOANS.
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"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 LaSalle Bank National
Association, as
Trustee, on behalf of and in trust for the registered holders of
Merrill Lynch
Mortgage Trust 2005-CIP1, Commercial Mortgage Pass-Through
Certificates, Series
2005-CIP1, and [name of the related Non-Trust Noteholder(s)], as
their interests
may appear". Any such account shall be an Eligible Account.
"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
LaSalle Bank
National Association, as Trustee in trust for registered holders of
Merrill
Lynch Mortgage Trust 2005-CIP1, Commercial Mortgage Pass-Through
Certificates,
Series 2005-CIP1, 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-to-Value Ratio": With respect to any 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 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
any successor REO Loan with respect thereto, 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", "Primary Servicing Fee
Rate" and
"Sub-Servicer Fee Rate" on the Mortgage Loan Schedule, and with
respect to each
Non-Trust Loan, or any
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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. Notwithstanding the foregoing,
for purposes
of determining the amount of servicing compensation actually
payable to the
Master Servicer in respect of the Westchester Trust Mortgage Loan
pursuant to
Section 3.11(a), only the rate (0.01%) set forth under the column
"Master
Servicing Fee Rate" shall be taken into account.
"Merrill Mortgage Loan Purchase Agreement": That certain
mortgage loan purchase agreement, dated as of August 11, 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.
"MLMT Series 2005-MCP1 Applicable Servicer": The MLMT Series
2005-MCP1 Master Servicer or the MLMT Series 2005-MCP1 Special
Servicer, as
applicable.
"MLMT Series 2005-MCP1 Master Servicer": As defined in the
Preliminary Statement. The term "MLMT Series 2005-MCP1 Master
Servicer" shall
include any successor master servicer appointed pursuant to the
MLMT Series
2005-MCP1 Pooling and Servicing Agreement.
"MLMT Series 2005-MCP1 Pooling and Servicing Agreement": As
defined in the Preliminary Statement.
"MLMT Series 2005-MCP1 Securitization": As defined in the
Preliminary Statement.
"MLMT Series 2005-MCP1 Servicing Fee": With respect to the
Westchester Trust Mortgage Loan or any successor Trust REO Loan
with respect
thereto, the "Master Servicing Fee" payable to the MLMT Series
2005-MCP1 Master
Servicer with respect to such Mortgage Loan or Trust REO Loan, as
the case may
be, pursuant to the MLMT Series 2005-MCP1 Pooling and Servicing
Agreement.
"MLMT Series 2005-MCP1 Servicing Fee Rate": With respect to
the Westchester Trust Mortgage Loan or any related Trust REO Loan,
the "Master
Servicing Fee Rate" (as defined in the MLMT Series 2005-MCP1
Pooling and
Servicing Agreement) for such Mortgage Loan or REO Loan, as the
case may be. The
MLMT Series 2005-MCP1 Servicing Fee Rate includes the rate (0.02%)
set forth in
the Mortgage Loan Schedule under the column "Primary Servicing Fee
Rate" with
respect to the Westchester Trust Mortgage Loan.
"MLMT Series 2005-MCP1 Special Servicer": As defined in the
Preliminary Statement. The term "MLMT Series 2005-MCP1 Special
Servicer" shall
include any successor special servicer appointed pursuant to the
MLMT Series
2005-MCP1 Pooling and Servicing Agreement.
"MLMT Series 2005-MCP1 Trustee": As defined in the Preliminary
Statement. The term "MLMT Series 2005-MCP1 Trustee" shall include
any successor
trustee appointed pursuant to the MLMT Series 2005-MCP1 Pooling and
Servicing
Agreement.
"MLPF&S": Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
a Delaware corporation, or its successor in interest.
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"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 organization or other comparable Person
designated by the
Depositor, notice of which designation shall be given to the
Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent, 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":
(a) With respect to any Serviced Trust Mortgage Loan and, in
the case of any Serviced 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):
(i) (A) the original executed Mortgage Note for such Serviced
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 LaSalle Bank National Association, as
trustee for the registered holders of Merrill Lynch Mortgage Trust
2005-CIP1, Commercial Mortgage Pass-Through Certificates, Series
2005-CIP1, 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 such Serviced Trust Mortgage Loan otherwise
included in the Mortgage File, in favor of LaSalle Bank National
Association, as trustee for the registered holders of Merrill Lynch
Mortgage Trust 2005-CIP1, Commercial Mortgage Pass-Through
Certificates, Series 2005-CIP1 (or, in the case of a Loan
Combination,
in favor of LaSalle Bank
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National Association, as trustee for the registered holders of
Merrill
Lynch Mortgage Trust 2005-CIP1, Commercial Mortgage Pass-Through
Certificates, Series 2005-CIP1, 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 LaSalle Bank
National Association, as trustee for the registered holders of
Merrill
Lynch Mortgage Trust 2005-CIP1, Commercial Mortgage Pass-Through
Certificates, Series 2005-CIP1 (or, in the case of a Loan
Combination,
in favor of LaSalle Bank National Association, as trustee for the
registered holders of Merrill Lynch Mortgage Trust 2005-CIP1,
Commercial Mortgage Pass-Through Certificates, Series 2005-CIP1,
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
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
Serviced 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 LaSalle Bank National Association,
as
trustee for the registered holders of Merrill Lynch Mortgage Trust
2005-CIP1, Commercial Mortgage Pass-Through Certificates, Series
2005-CIP1, as assignee (or, in the case of a Loan Combination, in
favor
of LaSalle Bank National Association, as trustee for the registered
holders of Merrill Lynch Mortgage Trust 2005-CIP1, Commercial
Mortgage
Pass-Through Certificates, Series 2005-CIP1, 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
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(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 Serviced Trust Mortgage Loan; and
(xii) with respect to a Serviced Trust Mortgage Loan secured
by a hospitality property, a signed copy of any franchise agreement
and/or franchisor comfort letter;
(b) with respect to the Westchester Trust Mortgage Loan, the
following documents collectively:
(i) 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 LaSalle Bank National Association, as trustee for the
registered holders of Merrill Lynch Mortgage Trust 2005-CIP1,
Commercial Mortgage Pass-Through Certificates, Series
2005-CIP1, or in blank;
(ii) an executed copy of the Westchester
Intercreditor Agreement; and
(iii) an executed copy of the MLMT Series 2005-MCP1
Pooling and Servicing Agreement;
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
(a)(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.
"Mortgage Loan Purchase Agreement": Any of the Countrywide
Mortgage Loan Purchase Agreement, the IXIS 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;
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(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;
(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; and
(xxii)
the primary servicing fee rate, if any, for such
Trust Mortgage Loan.
"Mortgage Loan Seller": MLMLI, Countrywide, IXIS or PNC.
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"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 or, in
the case of the Westchester Trust Mortgage Loan, any modification
thereof
pursuant to the MLMT Series 2005-MCP1 Pooling and Servicing
Agreement; 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 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
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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 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,
the
applicable Master Servicing Fee Rate and, in the case of the
Westchester Trust
Mortgage Loan or any successor Trust REO Loan with respect thereto,
the MLMT
Series 2005-MCP1 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.
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"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 the
Fiscal Agent, as the case may be, that, as determined by the Master
Servicer,
the Special Servicer, the Trustee or the Fiscal Agent, as
applicable, in
accordance with the Servicing Standard (in the case of the Master
Servicer and
the Special Servicer) or its good faith judgment (in the case of
the Trustee and
Fiscal Agent) 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 the 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 the Fiscal Agent is a
Nonrecoverable P&I Advance and shall deliver notice of such
determination to the
Master Servicer, the Trustee and the 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 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 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 the Fiscal Agent's determination as to
the
recoverability of any P&I Advance shall be conclusive and
binding on the
Certificateholders. The Trustee and the Fiscal Agent shall be
entitled to
conclusively rely on any recoverability determination made by the
Master
Servicer
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and the Master Servicer, the Trustee and the 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
Serviced Mortgage Loan or Serviced REO Loan by the Master Servicer,
the Special
Servicer, the Trustee or the Fiscal Agent, as the case may be,
that, as
determined by the Master Servicer, the Special Servicer, the
Trustee or the
Fiscal Agent, as applicable, in accordance with the Servicing
Standard (in the
case of the Master Servicer and the Special Servicer) or its good
faith judgment
(in the case of the Trustee and Fiscal Agent) with respect to such
Servicing
Advance (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 the 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 the Fiscal Agent is a Nonrecoverable
Servicing Advance
and shall deliver notice of such determination to the Master
Servicer, the
Trustee and the 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 the
Fiscal Agent's determination as to the recoverability of any
Servicing Advance
shall be conclusive and binding on the Certificateholders. The
Trustee and the
Fiscal Agent shall be entitled to conclusively rely on any
recoverability
determination made by the Master Servicer and the Master Servicer,
the Trustee
and the 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.
"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, a 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.
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"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": $2,056,750,308.
"Original Class XP Notional Amount": $2,008,754,000.
"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,
4.6300% per annum;
(ii)
the Class A-2 Certificates for any Distribution Date,
4.9600% per annum;
(iii)
the Class A-3A Certificates for any Distribution
Date, a per annum rate equal to the lesser of (a)
4.9490% and (b) the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(iv)
the Class A-3B Certificates for any Distribution
Date, a per annum rate equal to the lesser of (a)
5.0450% and (b) the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
-49-
(v)
the Class A-SB Certificates for any Distribution
Date, a per annum rate equal to the lesser of (a)
5.0220% and (b) the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(vi)
the Class A-4 Certificates for any Distribution Date,
a per annum rate equal to the lesser of (a) 5.0470%
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) 5.1070%
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) 5.1370%
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 Weighted Average Net
Mortgage Pass-Through Rate for such Distribution Date
minus 0.109%;
(x)
the Class C Certificates for any Distribution Date, a
per annum rate equal to the Weighted Average Net
Mortgage Pass-Through Rate for such Distribution Date
minus 0.079%;
(xi)
the Class D Certificates for any Distribution Date, a
per annum rate equal to the Weighted Average Net
Mortgage Pass-Through Rate for such Distribution Date
minus 0.010%;
(xii)
the Class E Certificates for any Distribution Date, a
per annum rate equal to 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;
(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;
(xvi)
the Class J Certificates for any Distribution Date, a
per annum rate equal to the lesser of (a) 4.8280% 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) 4.8280% and
(b) the Weighted Average Net Mortgage Pass-Through
Rate for such Distribution Date;
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(xviii)
the Class L Certificates for any Distribution Date, a
per annum rate equal to the lesser of (a) 4.8280% 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) 4.8280% 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) 4.8280% 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) 4.8280% 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) 4.8280% 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 the
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 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
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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) or, in the
case of the
Westchester Trust Mortgage Loan, by the MLMT Series 2005-MCP1
Applicable
Servicer pursuant to the MLMT Series 2005-MCP1 Pooling and
Servicing Agreement.
"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;
(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 DBRS (if then
rated
by DBRS and, if not so rated, then the equivalent rating by two
other
nationally recognized statistical rating organizations, which may
include Fitch and Moody's), Fitch 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, 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 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 DBRS (if then rated by DBRS and, if
not so
rated, then the equivalent rating by two other nationally
recognized
statistical rating organizations, which may include Fitch and
Moody's),
Fitch and Moody's or such lower rating as will not result in an
Adverse
Rating Event, as evidenced in
-52-
writing by the Rating Agencies; in addition, 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
DBRS
(if then rated by DBRS and, if not so rated, then the equivalent
rating
by two other nationally recognized statistical rating
organizations,
which may include Fitch and Moody's), Fitch 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; 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 DBRS (if then rated by DBRS
and,
if not so rated, then the equivalent rating by two other nationally
recognized statistical rating organizations, which may include
Fitch
and Moody's), Fitch 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, 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.
"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.
"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).
-53-
"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 of the Controlling
Class (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 August 11, 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 LaSalle Bank National
Association,
as Trustee in trust for the registered holders of Merrill Lynch
Mortgage Trust
2005-CIP1, Commercial Mortgage Pass-Through Certificates, Series
2005-CIP1".
"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 (a) any Serviced
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
Collection
Period, the amount of interest (net of the related Master Servicing
Fee 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); and (b)
the Westchester
Trust Mortgage Loan, if it was subject to a voluntary Principal
Prepayment in
full or in part during any Collection
-54-
Period, which Principal Prepayment was applied to such Mortgage
Loan following
such Mortgage Loan's Due Date in such Collection Period, the amount
of interest
(net of the related Master Servicing Fee, the MLMT Series 2005-MCP1
Servicing
Fee 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 to but not including the date such Principal Prepayment
was applied to
such Mortgage Loan, to the extent collected by, and to the extent
received from,
the MLMT Series 2005-MCP1 Master Servicer (without regard to any
related
Prepayment Premium or Yield Maintenance Charge actually collected).
"Prepayment Interest Shortfall": With respect to (a) any
Serviced 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); and
(b) the
Westchester Trust Mortgage Loan, if it 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 by, and received from, the
MLMT Series
2005-MCP1 Master Servicer (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.
-55-
"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 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
(or, in the case of the Westchester Trust Mortgage Loan, if
applicable,
by the MLMT Series 2005-MCP1 Applicable 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 (or, in the case of any Westchester REO Property,
if
applicable, by the MLMT Series 2005-MCP1 Applicable 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
-56-
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 Amount for the
subject
Distribution Date shall be increased as and to the extent provided
in Section
1.02(c).
"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%.
"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
August 11, 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).
-57-
"Purchase Option Notice": As defined in Section 3.18(e).
"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
DBRS (if then rated by DBRS and, if not so rated, then the
equivalent rating by
two other nationally recognized statistical rating organizations,
which may
include Fitch and Moody's), "A" by Fitch (if then rated by Fitch
and, if not so
rated, then the equivalent rating by two other nationally
recognized statistical
rating organizations, which may include DBRS and Moody's) and "A3"
by Moody's
(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 DBRS (if then rated
by DBRS and,
if not so rated, then the equivalent rating by two other nationally
recognized
statistical rating organizations, which may include Fitch and
Moody's), "A" by
Fitch (if then rated by Fitch and, if not so rated, then the
equivalent rating
by two other nationally recognized statistical rating
organizations, which may
include DBRS and Moody's) and "A3" by Moody's (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.
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"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 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); and (xvi) have comparable prepayment restrictions. 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 July
2038.
"Rating Agency": Each of DBRS, Fitch and Moody's.
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"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 any successor REO
Loan as to
which a Final Recovery Determination has been made as to the
related REO
Property and with respect to the Westchester Trust Mortgage Loan or
any
successor Trust REO Loan with respect thereto, if a Final Recovery
Determination
has been made in respect thereof by the MLMT Series 2005-MCP1
Special Servicer,
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 (or, in
the case of the Westchester Trust Mortgage Loan, by the MLMT Series
2005-MCP1
Applicable Servicer pursuant to the MLMT Series 2005-MCP1 Pooling
and Servicing
Agreement), 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 (or, in the case of
the
Westchester Trust Mortgage Loan, by the MLMT Series 2005-MCP1
Applicable
Servicer pursuant to the MLMT Series 2005-MCP1 Pooling and
Servicing Agreement),
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.
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"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-3A, Class A-3B, Class A-SB, Class A-4, 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.
"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 (or, in the case of the Westchester Trust
Mortgage
Loan, the rights of the holder thereof with respect to any related
Westchester
REO Property under the MLMT Series 2005-MCP1 Pooling and Servicing
Agreement);
(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,
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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 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-3A,
Class A-3B, Class A-SB, Class A-4, 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 or, in the case of the Westchester
Mortgaged Property,
pursuant to the MLMT Series 2005-MCP1 Pooling and Servicing
Agreement.
"REO Disposition": The sale or other disposition of any REO
Property pursuant to Section 3.18 or, in the case of the
Westchester Mortgaged
Property, pursuant to the MLMT Series 2005-MCP1 Pooling and
Servicing Agreement.
"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
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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 the Fiscal Agent for the payment of, the costs of
operating,
managing, selling, leasing and maintaining the related REO Property
(other than
the Westchester REO Property) or for the reimbursement of or
payment to the
Master Servicer, the Special Servicer, the Trustee or the 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 such REO
Loan at the
related Mortgage Rate (in the case of the Trust REO Loan that
relates to the
Westchester Trust Mortgage Loan, net of the MLMT Series 2005-MCP1
Servicing Fee)
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 the 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 the 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 the 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; and with
respect to the
Westchester Loan Combination, the Westchester REO Property;
provided that the
Westchester Mortgaged Property shall constitute an REO Property if
acquired
under the MLMT Series 2005-MCP1 Pooling and Servicing Agreement for
the benefit
of all the related Non-Trust Noteholders and the Trust, as their
interests may
appear, through foreclosure,
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acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with
applicable law in connection with a default or imminent default of
the
Westchester Loan Combination.
"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 Serviced 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 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 its
Balloon Payment for one day or, if the Special Servicer receives,
prior to 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, then
for such longer period beyond the Due Date of such Balloon Payment
ending on the
earlier of (1) 60 days after the Due Date of such Balloon Payment
and (2) the
expiration of the refinancing commitment; provided, however, that a
Required
Appraisal Mortgage Loan shall 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;
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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, if the Westchester Loan Combination is being serviced
hereunder
pursuant to Section 3.28, 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).
"Reserve Funds": With respect to any Serviced 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 Securities and Trust
Services Group
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) the Fiscal
Agent, 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.
"Sarbanes-Oxley Certification": As defined in Section
8.16(a)(iv).
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"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, in the case of the Westchester Trust
Mortgage Loan
by the MLMT Series 2005-MCP1 Special Servicer pursuant to the MLMT
Series
2005-MCP1 Pooling and Servicing Agreement) 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 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-3A,
Class A-3B, Class A-SB, Class A-4, Class XC or Class XP
Certificate. "Sequential
Pay Certificate": Any Class A-1, Class A-2, Class A-3A, Class A-3B,
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, Class L, Class M, Class N,
Class P or Class
Q Certificate.
"Serviced Mortgage Loan": Each Mortgage Loan (including a
Specially Serviced Mortgage Loan, but excluding an REO Loan) other
than any
Mortgage Loan constituting part of a Loan Combination.
"Serviced Mortgaged Property": The Mortgaged Property securing
a Serviced Mortgage Loan.
"Serviced REO Loan": An REO Loan deemed to be outstanding in
respect of a Serviced Mortgaged Property.
"Serviced Trust Defaulted Mortgage Loan": A Defaulted Mortgage
Loan that is a Trust Mortgage Loan and a Serviced Mortgage Loan.
"Serviced Trust Mortgage Loan": Any Trust Mortgage Loan that
is a Serviced Mortgage Loan. Notwithstanding anything herein to the
contrary, in
no event shall the Westchester Trust Mortgage Loan constitute a
Serviced Trust
Mortgage Loan hereunder if it is not being serviced hereunder
pursuant to
Section 3.28.
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"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 the Fiscal Agent in connection
with the
servicing of a Serviced 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 Administered 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.
"Servicing Fees": With respect to each Serviced Mortgage Loan
and any successor REO Loan with respect thereto, the Master
Servicing Fee and
the Special Servicing Fee. With respect to the Westchester Trust
Mortgage Loan,
the Master Servicing Fee and the MLMT 2005-MCP1 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
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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
Serviced 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
Serviced Mortgage Loans, (ii) in the case of the Special Servicer,
if a Serviced
Mortgage Loan comes into and continues in default, the maximization
of the
recovery on that Serviced 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 Non-Trust Loan or,
if the
Westchester Loan Combination is being serviced hereunder pursuant
to Section
3.28, 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
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 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.
"Servicing Transfer Event": With respect to any Serviced
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
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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": LNR Partners, Inc., or any successor in
interest thereto, or any successor pecial 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, 0.35% 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;
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; and provided, further, that the only Specially
Designated Mortgage
Loan Document with respect to the Westchester Trust Mortgage Loan
shall be the
document described in clause (i) of this definition.
"Specially Serviced Mortgage Loan": Any Serviced Mortgage Loan
as to which any of the following events have occurred:
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(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, for
one day, unless the related Mortgagor delivers, prior to
the Due Date for such Balloon Payment, written evidence
from an institutional lender of such lender's binding
commitment to refinance such Mortgage Loan, then for such
longer period beyond such Mortgage Loan's maturity date
ending on the earlier of (a) 60 days after the related
Maturity Date and (B) the expiration of the refinancing
commitment; or
(b) the Master Servicer or, with the consent of the
Controlling Class Representative, the Special Servicer 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) or a default (other than an
Acceptable
Insurance Default or a default described in clause (a) above) that
may
materially impair the value of the Mortgaged Property as security
for
the Mortgage Loan, is in each case likely to occur and is likely to
remain unremedied for at least 60 days; or
(c) the Master Servicer or, with the consent of the
Controlling Class Representative, the Special Servicer 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 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
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(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 Serviced 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 Serviced 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, if the Westchester Loan Combination is being
serviced hereunder
pursuant to Section 3.28 and 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 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.
The Westchester Trust Mortgage Loan shall not constitute a
Specially Serviced Mortgage Loan hereunder if it is not being
serviced hereunder
pursuant to Section 3.28.
"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, Illinois, Kansas, Florida and by any other state or local
taxing
authorities as may, by notice to the Trustee, assert
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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 (or, in the case of a Mortgage Loan
constituting part
of the Westchester Loan Combination, by the MLMT Series 2005-MCP1
Special
Servicer pursuant to the MLMT Series 2005-MCP1 Pooling and
Servicing Agreement)
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 preceding clause (i), as to which there is not and
never
has been an outstanding P&I Advance and that is actually
applied in
reduction of the amount of principal owing from the related
Mortgagor;
(iii) any amount of reduction in the outstanding principal
balance of such Trust Mortgage Loan resulting from a Deficient
Valuation that occurred during the related Collection Period; and
(iv) any related Realized Loss (other than any such loss
resulting from a Deficient Valuation) incurred during the related
Collection Period that represents a loss of principal with respect
to
that Trust Mortgage Loan.
With respect to any Trust REO Loan, as of any date of
determination, an amount equal to (x) the Stated Principal Balance
of the
predecessor Trust Mortgage Loan as of the date of the related REO
Acquisition,
permanently reduced on each subsequent Distribution Date, to not
less than zero,
by (y) the sum of:
(a) all amounts, if any, collected with respect to the related
REO Property that are allocable as principal of the subject Trust
REO
Loan and that are included as part of the Principal Distribution
Amount
for such Distribution Date pursuant to clause (e) and/or clause (f)
of,
and without regard to the provisos to, the definition of "Principal
Distribution Amount"; and
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(b) any related Realized Losses incurred during the related
Collection Period that represents a loss of principal with respect
to
the subject Trust REO Loan.
A Trust Mortgage Loan or a Trust REO Loan shall be deemed to
be part of the Trust Fund and to have an outstanding Stated
Principal Balance
until the Distribution Date on which the payments or other
proceeds, if any,
received in connection with a Liquidation Event in respect thereof
are to be
(or, if no such payments or other proceeds are received in
connection with such
Liquidation Event, would have been) distributed to
Certificateholders.
If the Westchester Loan Combination is being serviced
hereunder pursuant to Section 3.28, the Stated Principal Balance
with respect to
each Westchester Subordinate Non-Trust Loan or any successor REO
Loan with
respect thereto, as of any date of determination, shall be (1) the
Cut-off Date
Balance of such Mortgage Loan, as permanently reduced on each
Westchester Early
Remittance Date to not less than zero, by (2) the sum of (A) any
amounts
received during the related Collection Period that are allocable as
principal of
such Non-Trust Loan or any successor REO Loan with respect thereto
and (B) any
Realized Losses incurred with respect to such Non-Trust Loan or any
successor
REO Loan during the related Collection Period that represent a loss
of principal
with respect thereto (including as a result of a Deficient
Valuation).
With respect to a Non-Trust Loan (other than a Westchester
Subordinate Non-Trust Loan) or any successor REO Loan with respect
thereto on
any date of determination, the Stated Principal Balance shall equal
the unpaid
principal balance of such Non-Trust Loan or the deemed unpaid
principal balance
of such successor REO Loan.
"Subordinated Certificate": Any Class AM, 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, Class Q, Class R-I or Class R-II Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or
the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the
Master Servicer or the Special Servicer, on the one hand, and any
Sub-Servicer,
on the other hand, relating to servicing and administration of
Mortgage Loans as
provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a
substitution pursuant to or as contemplated by Section 2.03(a)
hereof, an amount
equal to the excess, if any, of the Purchase Price of the Trust
Mortgage Loan
being replaced, calculated as of the date of substitution over the
Stated
Principal Balance of the related Qualified Substitute Mortgage Loan
as of the
date of substitution. In the event that one or more Qualified
Substitute
Mortgage Loans are substituted (at the same time) for one or more
deleted Trust
Mortgage Loans, the Substitution Shortfall Amount shall be
determined as
provided in the preceding sentence on the basis of the aggregate
Purchase Price
of the Trust Mortgage Loan or Trust Mortgage Loans being replaced
and the
aggregate Stated Principal Balance of the related Qualified
Substitute Mortgage
Loan or Qualified Substitute Mortgage Loans.
"Tax Matters Person": With respect to each of the REMICs
created hereunder, the Person designated as the "tax matters
person" of such
REMIC in the manner provided under Treasury
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Regulations Section 1.860F-4(d), which Person shall be the
applicable Plurality
Residual Certificateholder.
"Tax Returns": The federal income tax returns on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment
Conduit Income
Tax Return, including Schedule Q thereto, Quarterly Notice to
Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any
successor forms,
to be filed on behalf of each of REMIC I and REMIC II due to its
classification
as a REMIC under the REMIC Provisions, the federal income tax
return to be filed
on behalf of each of Grantor Trust Z and Grantor Trust E due to its
classification as a grantor trust under the Grantor Trust
Provisions, together
with any and all other information, reports or returns that may be
required to
be furnished to the Certificateholders or filed with the Internal
Revenue
Service under any applicable provisions of federal tax law or any
other
governmental taxing authority under applicable State and Local Tax
laws.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership
Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust": The common law trust created hereunder.
"Trust ARD Loan": Any Trust Mortgage Loan that is an ARD Loan.
"Trust Balloon Loan": Any Trust Mortgage Loan that is a
Balloon Loan.
"Trust Corrected Mortgage Loan": Any Trust Mortgage Loan that
is a Corrected Mortgage Loan.
"Trust Defaulted Mortgage Loan": Any Trust Mortgage Loan that
is a Defaulted Mortgage Loan.
"Trust Defeasance Mortgage Loan": Any Trust Mortgage Loan that
is a Defeasance Loan.
"Trust Fund": Collectively, (i) all of the assets of REMIC I
and REMIC II, (ii) the Grantor Trust Z Assets, and (iii) the
Grantor Trust E
Assets.
"Trust Mortgage Loan": Each of the mortgage loans, including
any A-Note Trust Mortgage Loan and the Westchester Trust Mortgage
Loan,
transferred and assigned to the Trust Fund pursuant to Section 2.01
and listed
on the Mortgage Loan Schedule and from time to time held in the
Trust Fund.
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"Trust Required Appraisal Mortgage Loan": Any Trust Mortgage
Loan or Trust REO Loan that is a Required Appraisal Mortgage Loan.
"Trust REO Loan": Any REO Loan that succeeded a Trust Mortgage
Loan.
"Trust Specially Serviced Mortgage Loan": Any Trust Mortgage
Loan that is a Specially Serviced Mortgage Loan.
"Trustee": LaSalle Bank National Association, its successor in
interest, or any successor trustee appointed as herein provided.
"Trustee Fee": With respect to each Trust Mortgage Loan and
each Trust REO Loan for any Distribution Date (excluding, in the
case of the
initial Distribution Date, any Closing Date Deposit Mortgage Loan),
an amount
equal to one month's interest for the most recently ended calendar
month
(calculated on the same interest accrual basis as such Trust
Mortgage Loan or
Trust REO Loan, as the case may be), accrued at the Trustee Fee
Rate on the
Stated Principal Balance of such Trust Mortgage Loan or Trust REO
Loan, as the
case may be, outstanding immediately following the prior
Distribution Date (or,
in the case of the initial Distribution Date, as of the Closing
Date).
"Trustee Fee Rate": 0.0011% per annum.
"Trustee Investment Period": With respect to any Distribution
Date, the period commencing on the day immediately following the
preceding
Distribution Date (or, in the case of the initial Distribution
Date, commencing
on the Closing Date) and ending on and including the subject
Distribution Date.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement filed
pursuant to the UCC.
"Underwriter": Each of MLPF&S, Countrywide Securities, IXIS
Securities North America Inc., PNC Capital Markets and Wachovia
Capital Markets,
LLC or in each case, its respective successor in interest.
"United States Tax Person": A citizen or resident of the
United States, a corporation, partnership or other entity created
or organized
in, or under the laws of, the United States or any political
subdivision
thereof, or an estate whose income from sources without the United
States is
includable in gross income for United States federal income tax
purposes
regardless of its connection with the conduct of a trade or
business within the
United States, or a trust if a court within the United States is
able to
exercise supervision over the administration of the trust and one
or more United
States persons have the authority to control all substantial
decisions of the
trust (or to the extent provided in the Treasury regulations, if
the trust was
in existence on August 20, 1996 and elected to be treated as a
United States
person), all within the meaning of Section 7701(a)(30) of the Code.
"Unliquidated Advance": Any Advance previously made by a party
hereto that (i) is not a Nonrecoverable Advance, (ii) has been
previously
reimbursed to the party that made the Advance as a Workout-Delayed
Reimbursement
Amount pursuant to Section 3.05(a)(vii) out of principal
collections on other
Trust Mortgage Loans and (iii) was originally made with respect to
an item that
has not been
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subsequently recovered out of collections on or proceeds of the
related Trust
Mortgage Loan or any related REO Property (and provided that no
Liquidation
Event has occurred with respect to the related Trust Mortgage Loan
or any
related REO Property).
"Unrestricted Servicer Reports": Collectively, the CMSA
Delinquent Loan Status Report, the CMSA Historical Loan
Modification and
Corrected Mortgage Loan Report, the CMSA Historical Liquidation
Report, the CMSA
REO Status Report, the CMSA Advance Recovery Report and, if and to
the extent
filed with the Securities and Exchange Commission, such reports and
files as
would, but for such filing, constitute Restricted Servicer Reports.
"USAP": The Uniform Single Attestation Program for Mortgage
Bankers established by the Mortgage Bankers of America.
"Voting Rights": The portion of the voting rights of all of
the Certificates which is allocated to any Certificate. At all
times during the
term of this Agreement, 100% of the Voting Rights shall be
allocated among the
Holders of the Regular Certificates. Ninety-eight percent (98%) of
the Voting
Rights shall be allocated among the Class A-1, Class A-2, Class
A-3A, Class
A-3B, 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, Class L,
Class M, Class N,
Class P and Class Q Certificates in proportion to the respective
Class Principal
Balances of their Certificates. Two percent (2%) in the aggregate
of the Voting
Rights shall be allocated to the Class X Certificates (allocated,
pro rata,
between the Class XC and Class XP Certificates based upon their
respective
Notional Amounts). The Class Z and the Residual Certificates shall
have no
voting rights. Voting Rights allocated to a Class of
Certificateholders shall be
allocated among such Certificateholders in standard proportion to
the Percentage
Interests evidenced by their respective Certificates. In addition,
if the Master
Servicer is the holder of any Certificates, the Master Servicer, in
its capacity
as a Certificateholder, shall have no Voting Rights with respect to
matters
concerning compensation affecting the Master Servicer.
"Weighted Average Net Mortgage Pass-Through Rate": With
respect to any Distribution Date, the rate per annum equal to the
weighted
average, expressed as a percentage and rounded to six decimal
places, of the
respective Net Mortgage Pass-Through Rates applicable to the Trust
Mortgage
Loans and any Trust REO Loans for such Distribution Date, weighted
on the basis
of their respective Stated Principal Balances immediately following
the
preceding Distribution Date (or, in the case of the initial
Distribution Date,
as of the Closing Date).
"Westchester Controlling Party": The "Controlling Holder"
within the meaning of the Westchester Intercreditor Agreement,
which prior to
the occurrence of a Westchester Control Appraisal Event (that is
not the subject
of a successful application of Westchester Control Retention
Collateral) with
respect to each Westchester Subordinate Non-Trust Loan, shall be
the Westchester
Controlling Subordinate Noteholder, and, following the occurrence
of a
Westchester Control Appraisal Event (that is not the subject of a
successful
application of Westchester Retention Collateral) with respect to
each
Westchester Subordinate Non-Trust Loan, shall be the holder of the
Westchester
Pari Passu Trust Mortgage Loan or, if such Mortgage Loan is no
longer an asset
of the trust fund for the MLMT Series 2005-MCP1 Securitization and
is being
serviced hereunder pursuant to Section 3.28, shall be the
Controlling Class
Representative as the designee of the Trustee.
"Westchester Controlling Subordinate Noteholder": As of any
date of determination, the holder of the most junior Westchester
Subordinate
Non-Trust Loan, if any, as to which a Westchester Control Appraisal
Event has
not occurred and is continuing.
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"Westchester Control Appraisal Event": A "Control Appraisal
Event" within the meaning of the Westchester Intercreditor
Agreement.
"Westchester Control Retention Collateral": Any "Control
Retention Collateral" within the meaning of the Westchester
Intercreditor
Agreement.
"Westchester Early Remittance Date": The seventh day of each
calendar month, or if the seventh day is not a Business Day, the
next succeeding
Business Day, commencing in July 2005.
"Westchester Intercreditor Agreement": The Agreement Among
Noteholders, dated June 29, 2005, between the Trust Fund as holder
of the
Westchester Trust Mortgage Loan and the related Non-Trust
Noteholders.
"Westchester Loan Combination": Collectively, the Westchester
Trust Mortgage Loan, the Westchester Pari Passu Non-Trust Loan and
the
Westchester Subordinate Non-Trust Loans. The term "Westchester Loan
Combination"
shall include any successor REO Loans with respect to the
Westchester Trust
Mortgage Loan, the Westchester Pari Passu Non-Trust Loan and the
Westchester
Subordinate Non-Trust Loans.
"Westchester Mortgaged Property": The Mortgaged Property
identified on the Mortgage Loan Schedule as The Westchester.
"Westchester Non-Trust Loan" Any Westchester Subordinate
Non-Trust Loan or the Westchester Pari Passu Non-Trust Loan, as the
case may be.
"Westchester Pari Passu Non-Trust Loan": The Mortgage Loan in
the original principal amount of $200,000,000, that is secured by
the same
Mortgage encumbering the Westchester Mortgaged Property as the
Westchester Trust
Mortgage Loan and pari passu in right of payment and other respects
to the
Westchester Trust Mortgage Loan.
"Westchester Pari Passu Non-Trust Loan Related MBS": Any
securities evidencing an interest in, or secured by, the
Westchester Pari Passu
Non-Trust Loan or any successor REO Loan with respect thereto.
"Westchester Pari Passu Noteholder": The holder of the
Westchester Pari Passu Non-Trust Loan.
"Westchester Pari Passu Non-Trust Loan Securitization
Agreement": Any agreement governing the securitization of the
Westchester Pari
Passu Non-Trust Loan or any successor REO Loan with respect
thereto. The MLMT
Series 2005-MCP1 Pooling and Servicing Agreement is the initial
Westchester Pari
Passu Non-Trust Loan Securitization Agreement.
"Westchester REO Property": With respect to the Westchester
Loan Combination, the related Loan Combination REO Property.
"Westchester Specially Designated Servicing Actions": The
matters in respect of which the Westchester Controlling Party is
entitled to
advise the Special Servicer, as set forth in Sections 20(b), (c),
(d), (e) and
(f) of the Westchester Intercreditor Agreement.
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"Westchester Special Servicer": As defined in Sections 6.09
and 7.01(c).
"Westchester Subordinate Non-Trust Loan": Each of the Mortgage
Loans, other than the Westchester Trust Mortgage Loan and the
Westchester Pari
Passu Non-Trust Loan, that are secured by the same Mortgage
encumbering the
Westchester Mortgaged Property as the Westchester Trust Mortgage
Loan and the
Westchester Pari Passu Non-Trust Loan, and that are subordinate in
right of
payment to the Westchester Trust Mortgage Loan. The Westchester
Subordinate
Non-Trust Loans shall not be part of the Mortgage Pool and will not
be
considered Trust Mortgage Loans.
"Westchester Subordinate Noteholder": Any holder of any
Westchester Subordinate Non-Trust Loan.
"Westchester Triggering Event": A "Purchase Trigger" within
the meaning of the Westchester Intercreditor Agreement.
"Westchester Trust Mortgage Loan": The Mortgage Loan secured
by the Westchester Mortgaged Property and included in the Trust
Fund.
"Workout-Delayed Reimbursement Amounts": With respect to any
Trust Mortgage Loan, the amount of any Advance made with respect to
such Trust
Mortgage Loan on or before the date such Trust Mortgage Loan
becomes (or, but
for the making of three monthly payments under its modified terms,
would then
constitute) a Trust Corrected Mortgage Loan, together with (to the
extent
accrued and unpaid) interest on such Advances accruing before, on
and after such
date, to the extent that (i) such Advance is not reimbursed to the
Person who
made such Advance on or before the date, if any, on which such
Trust Mortgage
Loan becomes a Trust Corrected Mortgage Loan and (ii) the amount of
such Advance
becomes an obligation of the Mortgagor to pay such amount under the
terms of the
modified loan documents. That any amount constitutes all or a
portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit
the right of
any Person hereunder to determine that such amount instead
constitutes a
Nonrecoverable Advance.
"Workout Fee": With respect to each Corrected Mortgage Loan,
the fee designated as such and payable to the Special Servicer
pursuant to the
second paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage
Loan, 1.00%.
"Yield Maintenance Charge": Payments paid or payable, as the
context requires, on a Mortgage Loan as the result of a Principal
Prepayment
thereon, not otherwise due thereon in respect of principal or
interest, which
have been calculated (based on Scheduled Payments on such Mortgage
Loan) to
compensate the holder for reinvestment losses based on the value of
an interest
rate index at or near the time of prepayment. Any other prepayment
premiums,
penalties and fees not so calculated will not be considered "Yield
Maintenance
Charges". In the event that a Yield Maintenance Charge shall become
due for any
particular Mortgage Loan, the Master Servicer or the Special
Servicer, as
applicable, shall be required to follow the terms and provisions
contained in
the applicable Mortgage Note, provided, however, in the event the
particular
Mortgage Note shall not specify the U.S. Treasuries which shall be
used in
determining the discount rate or the reinvestment yield to be
applied in such
calculation, the Master Servicer or the Special Servicer, as
applicable, shall
be required to use those U.S. Treasuries having maturity dates most
closely
approximating the maturity of such Mortgage Loan. Accordingly if
either no U.S.
Treasury issue, or more than one U.S. Treasury issue, shall
coincide with
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the term over which the Yield Maintenance Charge shall be
calculated (which
depending on the applicable Mortgage Note is based on the remaining
average life
of the Mortgage Loan or the actual term remaining through the
Maturity Date),
the Master Servicer or the Special Servicer, as applicable, shall
use the U.S.
Treasury whose reinvestment yield is the lowest, with such yield
being based on
the bid price for such issue as published in The Wall Street
Journal on the date
that is 14 days prior to the date that the Yield Maintenance Charge
shall become
due and payable (or, if such bid price is not published on that
date, the next
preceding date on which such bid price is so published) and
converted to a
monthly compounded nominal yield. The monthly compounded nominal
yield ("MEY")
is derived from the reinvestment yield or discount rate and shall
be defined as
MEY = 12X ({(1+"BEY"/2)^1/6}-1) where BEY is defined as the U.S.
Treasury
Reinvestment Yield which is in decimal form and not in percentage,
and 1/6 is
the exponential power to which a portion of the equation is raised.
For example,
using a BEY of 5.50%, the MEY = 12 X ({(1+ .055/2)^0.16667}-1)
where .055 is the
decimal version of the percentage 5.5% and 0.16667 is the decimal
version of the
exponential power. The MEY in the above calculation is 5.44%.
SECTION 1.02. Certain Adjustments to the Principal
Distributions on the Certificates.
(a) If any party hereto is reimbursed out of general
collections on the Mortgage Pool on deposit in the Collection
Account for (i)
any unreimbursed Advance that has been or is determined to be a
Nonrecoverable
Advance (together with interest accrued and payable thereon
pursuant to Section
3.03(d) or Section 4.03(d), as applicable, to the extent such
interest was paid
hereunder from a source other than related Default Charges) or (ii)
any
Workout-Delayed Reimbursement Amount, then (for purposes of
calculating
distributions on the Certificates) such reimbursement and payment
of interest
shall be deemed to have been made:
first, out of any amounts then on deposit in the
Collection Account that represent payments or other collections of
principal received by the Trust with respect to the Trust Mortgage
Loans and/or Trust REO Loans, which amounts, but for their
application
to reimburse such Nonrecoverable Advance (and/or to pay interest
thereon) or to reimburse such Workout-Delayed Reimbursement Amount,
as
the case may be, would be included in the Available Distribution
Amount
for the related Distribution Date;
second, solely in the case of the reimbursement of a
Nonrecoverable Advance and/or the payment of interest thereon, out
of
any amounts then on deposit in the Collection Account that
represent
any other payments or other collections received by the Trust with
respect to the Trust Mortgage Loans or Trust REO Loans, which
amounts,
but for their application to reimburse a Nonrecoverable Advance
and/or
to pay interest thereon, would be included in the Available
Distribution Amount for the related Distribution Date; and
third, solely in the case of the reimbursement of a
Nonrecoverable Advance and/or the payment of interest thereon, out
of
any other amounts then on deposit in the Collection Account that
may be
available to reimburse the subject Nonrecoverable Advance and/or to
pay
interest thereon.
(b) If and to the extent that any payment or other collection
of principal received on the Mortgage Pool during any Collection
Period is
deemed to be applied in accordance with clause first of Section
1.02(a) to
reimburse a Nonrecoverable Advance (or to pay interest thereon) or
to reimburse
a
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Workout-Delayed Reimbursement Amount, then the Principal
Distribution Amount
for the related Distribution Date shall be reduced by the portion
of such
payment or other collection of principal that, but for the
application of this
Section 1.02(b), would constitute part of such Principal
Distribution Amount.
(c) If and to the extent that any Nonrecoverable Advance or
Workout-Delayed Reimbursement Amount is reimbursed or interest on
any
Nonrecoverable Advance is paid out of payments or other collections
of principal
received on the Mortgage Pool (with a corresponding reduction to
the Principal
Distribution Amount), and further if and to the extent that the
particular item
for which such Advance was originally made or such Workout-Delayed
Reimbursement
Amount is outstanding is subsequently collected out of payments or
other
collections in respect of the related Trust Mortgage Loan or Trust
REO Loan
(such item, upon collection, a "Recovered Amount"), then (without
duplication of
amounts already included therein) the Principal Distribution Amount
for the
Distribution Date that corresponds to the Collection Period in
which such
Recovered Amount was received, shall be increased by an amount
equal to the
lesser of (A) such Recovered Amount and (B) any previous reduction
in the
Principal Distribution Amount for a prior Distribution Date
pursuant to Section
1.02(b) above resulting from the reimbursement of the subject
Nonrecoverable
Advance (and/or the payment of interest thereon) or the
reimbursement of the
subject Workout-Delayed Reimbursement Amount, as the case may be.
(d) For purposes of making the adjustments to the Principal
Distribution Amount for each Distribution Date contemplated by this
Section
1.02, that amount shall be calculated in accordance with the
definition thereof
(without regard to this Section 1.02) and shall thereafter be
adjusted as
provided in this Section 1.02.
(e) Nothing contained in this Section 1.02 is intended to
limit the ability of any party hereto that is entitled to
reimbursement
hereunder for any unreimbursed Advances that have been or are
determined to be
Nonrecoverable Advances (together with interest accrued and payable
thereon
pursuant to Section 3.03(d) or Section 4.03(d)) to collections of
principal
received by the Trust with respect to the Mortgage Pool; instead
the order of
priority set forth in Section 1.02(a) is a deemed allocation only
for purposes
of calculating distributions on the Certificates.
(f) For purposes of this Section 1.02, notwithstanding any
other provision of this Agreement (unless the Westchester Trust
Mortgage Loan is
being serviced hereunder pursuant to Section 3.28), the terms
"Nonrecoverable
Advance" and "Workout-Delayed Reimbursement Amount" shall include
any amounts
paid by the Master Servicer pursuant to Section 3.05(a)(xviii) in
reimbursement
of "Nonrecoverable Advances" and "Workout-Delayed Reimbursement
Amounts" (in
each case within the meaning of the MLMT Series 2005-MCP1 Pooling
and Servicing
Agreement) in respect of the Westchester Trust Mortgage Loan, any
successor
Trust REO Loan with respect thereto or the Westchester Mortgaged
Property.
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ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01.
Conveyance of Trust Mortgage Loans.
(a) The Depositor, concurrently with the execution and
delivery hereof, does hereby establish a common law trust under the
laws of the
State of New York, designated as "Merrill Lynch Mortgage Trust
2005-CIP1" and
consisting of the Trust Fund, and does hereby assign, sell,
transfer, set over
and otherwise convey to the Trustee, in trust, without recourse,
for the benefit
of the Certificateholders (and for the benefit of the other parties
to this
Agreement as their respective interests may appear) all the right,
title and
interest of the Depositor, in, to and under (i) the Trust Mortgage
Loans and all
documents included in the related Mortgage Files and Servicing
Files, (ii) the
rights of the Depositor under Sections 2, 3, 8, 9, 10, 11, 12, 13,
14, 16, 17,
19 and 20 of each Mortgage Loan Purchase Agreement, (iii) the
rights of the
Depositor under each Loan Combination Intercreditor Agreement, (iv)
the rights
of the Depositor under the Westchester Intercreditor Agreement and
(v) all other
assets included or to be included in the Trust Fund. Such
assignment includes
all interest and principal received or receivable on or with
respect to the
Trust Mortgage Loans and due after the Cut-off Date and, in the
case of each
Trust Mortgage Loan that is part of a Loan Combination, is subject
to the
provisions of the corresponding Loan Combination Intercreditor
Agreement. The
Trustee, on behalf of the Trust, assumes the obligations of the
"Note A-2
Holder" under the Westchester Intercreditor Agreement; provided
that the Master
Servicer shall, as further set forth in Article III, perform the
servicing
obligations of the "A Note Holder" under each Loan Combination
Intercreditor
Agreement that relates to an A/B Loan Combination and perform the
servicing
obligations and exercise the related rights of the "Note A-2
Holder" under the
Westchester Intercreditor Agreement. The transfer of the Trust
Mortgage Loans
and the related rights and property accomplished hereby is absolute
and,
notwithstanding Section 11.07, is intended by the parties to
constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above the Depositor shall direct, and hereby
represents and
warrants that it has directed, the Mortgage Loan Sellers pursuant
to their
respective Mortgage Loan Purchase Agreements to deliver to and
deposit with, or
cause to be delivered to and deposited with, the Trustee or a
Custodian
appointed thereby (with a copy to the Master Servicer and Special
Servicer), on
or before the Closing Date, the Mortgage File for each Trust
Mortgage Loan so
assigned. The Special Servicer may request the Master Servicer to
deliver a copy
of the Servicing File for any Trust Mortgage Loan (other than a
Specially
Serviced Mortgage Loan) if the Master Servicer shall not have
granted the
Special Servicer electronic access to such Servicing Files. None of
the Trustee,
the Fiscal Agent, any Custodian, the Master Servicer or the Special
Servicer
shall be liable for any failure by any Mortgage Loan Seller or the
Depositor to
comply with the document delivery requirements of the related
Mortgage Loan
Purchase Agreement and this Section 2.01(b).
(c) If any Mortgage Loan Seller cannot deliver, or cause to be
delivered, on the Closing Date, as to any Serviced Trust Mortgage
Loan, any of
the documents and/or instruments referred to in clauses (a)(ii),
(a)(iii),
(a)(vi) (if recorded) and (a)(viii) of the definition of "Mortgage
File", with
evidence of recording thereon, solely because of a delay caused by
the public
recording office where such document or instrument has been
delivered for
recordation, the delivery requirements of the related Mortgage Loan
Purchase
Agreement and Section 2.01(b) shall be deemed to have been
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satisfied as to such non-delivered document or instrument, and such
non-delivered document or instrument shall be deemed to have been
included in
the Mortgage File, if a photocopy of such non-delivered document or
instrument
(certified by the applicable Mortgage Loan Seller to be a true and
complete copy
of the original thereof submitted for recording) is delivered to
the Trustee or
a Custodian appointed thereby on or before the Closing Date, and
either the
original of such non-delivered document or instrument, or a
photocopy thereof,
with evidence of recording or filing as applicable, thereon, is
delivered to the
Trustee or such Custodian within 120 days of the Closing Date (or
within such
longer period after the Closing Date as the Trustee may consent to,
which
consent shall not be unreasonably withheld so long as the
applicable Mortgage
Loan Seller is, in good faith, attempting to obtain from the
appropriate county
recorder's office such original or photocopy, as evidenced by an
officer's
certificate). If the applicable Mortgage Loan Seller cannot
deliver, or cause to
be delivered, as to any Serviced Trust Mortgage Loan, any of the
documents
and/or instruments referred to in clauses (a)(ii), (a)(iii),
(a)(vi) (if
recorded) and (a)(viii) of the definition of "Mortgage File," with
evidence of
recording or filing as applicable, thereon, for any other reason,
including,
without limitation, that such non-delivered document or instrument
has been
lost, the delivery requirements of the related Mortgage Loan
Purchase Agreement
and Section 2.01(b) shall be deemed to have been satisfied as to
such
non-delivered document or instrument and such non-delivered
document or
instrument shall be deemed to have been included in the Mortgage
File, provided
that a photocopy of such non-delivered document or instrument (with
evidence of
recording in the proper office thereon and with respect to the item
referred to
in clause (a)(ii) of the definition of "Mortgage File", certified
by the
appropriate county recorder's office to be a true and complete copy
of the
original submitted for recording) is delivered to the Trustee or a
Custodian
appointed thereby on or before the Closing Date.
If, on the Closing Date as to any Serviced Trust Mortgage
Loan, the applicable Mortgage Loan Seller does not deliver in
complete and
recordable form any one of the assignments in favor of the Trustee
referred to
in clause (a)(iv) or (a)(v) of the definition of "Mortgage File"
(in the case of
clause (a)(iv) solely because of a delay caused by the recording
office where
such document or instrument has been delivered for recordation),
the applicable
