EXHIBIT 4.2
EXECUTION VERSION
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Depositor
and
KEYCORP REAL ESTATE CAPITAL MARKETS, INC.
Master Servicer
and
J.E. ROBERT COMPANY, INC.
Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION
Trustee
and
ABN AMRO BANK N.V.
Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2005
----------
$3,073,749,461 (approximate)
Commercial Mortgage Pass-Through Certificates
Series 2005-CKI1
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01.
Defined Terms...........................................
5
SECTION 1.02.
Certain Adjustments to the Principal Distributions on
the Certificates.....................................
78
SECTION 1.03.
Calculation of LIBOR....................................
81
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........................
92
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 and
Class A-4FL Certificates.............................
93
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01.
Administration of the Mortgage Loans....................
94
SECTION 3.02.
Collection of Mortgage Loan Payments....................
96
SECTION 3.03.
Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.................
98
SECTION 3.04.
Collection Account, Interest Reserve Account, Additional
Interest Account, Distribution Account, Gain-on-Sale
Reserve Account, Floating Rate 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 Floating Rate 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 Floating Rate Account, the
Loan Combination Custodial Accounts, the Additional
Interest Account, the Gain-on-Sale Reserve Account
and the REO Accounts.................................
122
SECTION 3.07.
Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage................................
124
SECTION 3.08.
Enforcement of Alienation Clauses.......................
128
SECTION 3.09.
Realization Upon Defaulted Mortgage Loans; Required
Appraisals...........................................
131
SECTION 3.10.
Trustee and Custodian to Cooperate; Release of Mortgage
Files................................................
135
SECTION 3.11.
Servicing Compensation..................................
136
SECTION 3.12.
Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports..............
142
SECTION 3.13.
Annual Statement as to Compliance.......................
146
SECTION 3.14.
Reports by Independent Public Accountants...............
147
SECTION 3.15.
Access to Certain Information...........................
147
SECTION 3.16.
Title to REO Property; REO Accounts.....................
151
SECTION 3.17.
Management of REO Property..............................
153
SECTION 3.18.
Resolution of Defaulted Mortgage Loans and REO
Properties...........................................
156
SECTION 3.19.
Additional Obligations of Master Servicer...............
162
SECTION 3.20.
Modifications, Waivers, Amendments and Consents.........
164
SECTION 3.21.
Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.....................
170
SECTION 3.22.
Sub-Servicing Agreements................................
173
SECTION 3.23.
Representations and Warranties of Master Servicer and
Special Servicer.....................................
176
SECTION 3.24.
Sub-Servicing Agreement Representation and Warranty.....
179
SECTION 3.25.
Designation of Controlling Class Representative.........
179
SECTION 3.26.
Application of Default Charges..........................
180
SECTION 3.27.
Controlling Class Representative Contact with
Servicer.............................................
182
SECTION 3.28.
Certain Matters Regarding the Loan Combinations.........
182
SECTION 3.29.
The Swap Agreement......................................
184
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01.
Distributions...........................................
188
SECTION 4.02.
Statements to Certificateholders........................
203
SECTION 4.03.
P&I Advances; Reimbursement of P&I Advances and
Servicing Advances...................................
208
SECTION 4.04.
Allocation of Realized Losses and Additional Trust Fund
Expenses.............................................
212
SECTION 4.05.
Calculations............................................
214
SECTION 4.06.
Use of Agents...........................................
214
ARTICLE V
THE CERTIFICATES
SECTION 5.01.
The Certificates........................................
215
SECTION 5.02.
Registration of Transfer and Exchange of Certificates...
215
SECTION 5.03.
Book-Entry Certificates.................................
223
SECTION 5.04.
Mutilated, Destroyed, Lost or Stolen Certificates.......
224
SECTION 5.05.
Persons Deemed Owners...................................
225
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.............................................
226
SECTION 6.02.
Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer..................
226
SECTION 6.03.
Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and Others............
226
SECTION 6.04.
Resignation of Master Servicer and the Special
Servicer.............................................
229
SECTION 6.05.
Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer....................
230
SECTION 6.06.
Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee...............................
231
SECTION 6.07.
Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.................................
231
SECTION 6.08.
Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer.....................................
231
SECTION 6.09.
Designation of Special Servicer by the Controlling
Class................................................
231
SECTION 6.10.
Master Servicer or Special Servicer as Owner of a
Certificate..........................................
232
SECTION 6.11.
The Controlling Class Representative....................
233
SECTION 6.12.
Certain Matters with Respect to the Glendale Galleria
Loan Combination.....................................
236
ARTICLE VII
DEFAULT
SECTION 7.01.
Events of Default.......................................
237
SECTION 7.02.
Trustee to Act; Appointment of Successor................
240
SECTION 7.03.
Notification to Certificateholders......................
241
SECTION 7.04.
Waiver of Events of Default.............................
242
SECTION 7.05.
Additional Remedies of Trustee Upon Event of Default....
242
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE FISCAL AGENT
SECTION 8.01.
Duties of Trustee.......................................
243
SECTION 8.02.
Certain Matters Affecting Trustee.......................
244
SECTION 8.03.
Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.........
245
SECTION 8.04.
Trustee and Fiscal Agent May Own Certificates...........
246
SECTION 8.05.
Fees and Expenses of Trustee; Indemnification of
Trustee..............................................
246
SECTION 8.06.
Eligibility Requirements for Trustee....................
247
SECTION 8.07.
Resignation and Removal of Trustee......................
247
SECTION 8.08.
Successor Trustee.......................................
248
SECTION 8.09.
Merger or Consolidation of Trustee......................
249
SECTION 8.10.
Appointment of Co-Trustee or Separate Trustee...........
249
SECTION 8.11.
Appointment of Custodians...............................
250
SECTION 8.12.
Appointment of Authenticating Agents....................
251
SECTION 8.13.
Access to Certain Information...........................
252
SECTION 8.14.
Appointment of REMIC Administrators.....................
252
SECTION 8.15.
Representations, Warranties and Covenants of Trustee....
253
SECTION 8.16.
Reports to the Securities and Exchange Commission.......
254
SECTION 8.17.
Maintenance of Mortgage File............................
259
SECTION 8.18.
The Fiscal Agent........................................
259
SECTION 8.19.
Representations and Warranties of Fiscal Agent..........
260
ARTICLE IX
TERMINATION
SECTION 9.01.
Termination Upon Repurchase or Liquidation of All Trust
Mortgage Loans.......................................
262
SECTION 9.02.
Additional Termination Requirements.....................
265
SECTION 9.03.
Non-Trust Mortgage Loans................................
266
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01.
REMIC Administration....................................
267
SECTION 10.02.
Grantor Trust Administration............................
270
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01.
Amendment...............................................
273
SECTION 11.02.
Recordation of Agreement; Counterparts..................
275
SECTION 11.03.
Limitation on Rights of Certificateholders..............
276
SECTION 11.04.
Governing Law...........................................
276
SECTION 11.05.
Notices.................................................
276
SECTION 11.06.
Severability of Provisions..............................
278
SECTION 11.07.
Grant of a Security Interest............................
278
SECTION 11.08.
Streit Act..............................................
279
SECTION 11.09.
Successors and Assigns; Beneficiaries...................
279
SECTION 11.10.
Article and Section Headings............................
279
SECTION 11.11.
Notices to Rating Agencies..............................
279
SECTION 11.12.
Complete Agreement......................................
281
SCHEDULES AND EXHIBITS
Schedule No.
Schedule Description
------------
--------------------
Schedule I
Mortgage Loan Schedule
Schedule II
List of Mortgage Loans with Secured Creditor Environmental
Insurance Policies
Schedule III
[RESERVED]
Schedule IV
Class A-SB Planned Principal Balances
Schedule V
List of Sub-Servicing Agreements In Effect on the Closing Date
Schedule VI
List of Mortgage Loans Requiring Operations and Maintenance
Plans
Schedule VII
List of Merrill Trust Mortgage Loans With Late Payment Charges
Due Prior to Expiration of Their Payment Date Grace Periods
Schedule VIII
List of Broker Strip Loans
Exhibit No.
Exhibit Description
-----------
-------------------
A-1
Form of Class A-1, A-1D, A-2, A-2FL, A-3, A-4FL, A-5, A-SB, A-6
and A-1A Certificates
A-2
[RESERVED]
A-3
Form of Class X 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
Form of Distribution Date Statement
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(b))
E-2A
Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
(Pursuant to Section 5.02(b))
E-2B
Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
(Pursuant to Section 5.02(b))
E-2C
Form of Transferee Certificate for Transfers of Interests in
Rule 144A Global Certificates
(Pursuant to Section 5.02(b))
E-2D
Form of Transferee Certificate for Transfers of Interests in
Regulation S Global Certificates
(Pursuant to Section 5.02(b))
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
[RESERVED]
K
Form of S&P Defeasance Certification
L
[RESERVED]
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 or Controlling Class Representative
N
[RESERVED]
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
POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement is dated and effective as of
December 1, 2005, among MERRILL LYNCH MORTGAGE INVESTORS, INC., as
Depositor,
KEYCORP REAL ESTATE CAPITAL MARKETS, INC., as Master Servicer, J.E.
ROBERT
COMPANY, 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
Broker Strip, 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 the Class X Certificates,
each Class X
Component thereof), the Class A-2FL REMIC II Regular Interest and
the Class A-4L
REMIC II Regular Interest, 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 (the "Corresponding REMIC I Regular Interest") for
each Class
of Sequential Pay Certificates; and (iv) the initial REMIC I
Principal Balance
of each such Corresponding REMIC I Regular Interest.
Corresponding
Class
Original Class
REMIC I
Initial REMIC I
Designation
Principal Balance
Regular Interest
Principal Balance
--------------
-----------------
----------------
-----------------
Class A-1
$
98,700,000
LA-1
$
98,700,000
Class A-1D
$
75,000,000
LA-1D
$
75,000,000
Class A-2
$
96,600,000
LA-2
$
96,600,000
Class A-2FL(1)
$
100,000,000
LA-2FL
$
100,000,000
Corresponding
Class
Original Class
REMIC I
Initial REMIC I
Designation
Principal Balance
Regular Interest
Principal Balance
--------------
-----------------
----------------
-----------------
Class A-3
$
44,677,000
LA-3
$
44,677,000
Class A-4FL(2)
$
300,000,000
LA-4FL
$
300,000,000
Class A-5
$
50,000,000
LA-5
$
50,000,000
Class A-SB
$
176,000,000
LA-SB
$
176,000,000
Class A-6
$1,069,709,000
LA-6
$1,069,709,000
Class A-1A
$
140,930,000
LA-1A
$
140,930,000
Class AM
$
307,374,000
LAM
$
307,374,000
Class AJ
$
234,372,000
LAJ
$
234,372,000
Class B
$
53,791,000
LB
$
53,791,000
Class C
$
26,895,000
LC
$
26,895,000
Class D
$
53,790,000
LD
$
53,790,000
Class E
$
30,738,000
LE
$
30,738,000
Class F
$
53,790,000
LF
$
53,790,000
Class G
$
30,738,000
LG
$
30,738,000
Class H
$
34,579,000
LH
$
34,579,000
Class J
$
7,685,000
LJ
$
7,685,000
Class K
$
11,526,000
LK
$
11,526,000
Class L
$
11,527,000
LL
$
11,527,000
Class M
$
3,842,000
LM
$
3,842,000
Class N
$
7,684,000
LN
$
7,684,000
Class P
$
11,527,000
LP
$
11,527,000
Class Q
$
42,275,461
LQ
$
42,275,461
----------
(1)
The Class A-2FL REMIC II Regular Interest will have the same
designation,
Original Class Principal Balance and Corresponding REMIC I Regular
Interest
as the Class A-2FL Certificates.
(2)
The Class A-4FL REMIC II Regular Interest will have the same
designation,
Original Class Principal Balance and Corresponding REMIC I Regular
Interest
as the Class A-4FL Certificates.
There exists one (1) Trust Mortgage Loan, the Glendale Galleria
Trust
Mortgage Loan, that has a Cut-off Date Balance of $153,635,946 and
is evidenced
by a Mortgage Note designated as "Note A1" under the Glendale
Galleria
Intercreditor Agreement, which is part of a group of loans
comprised of that
Trust Mortgage Loan and three other mortgage loans, namely the
Glendale Galleria
-2-
Pari Passu Non-Trust Loan and the Glendale Galleria Subordinate
Non-Trust Loans,
that are all secured by the same Mortgage encumbering the Glendale
Galleria
Mortgaged Property. The Glendale Galleria Pari Passu Non-Trust
Loan, which is
pari passu in right of payment and in other respects with the
Glendale Galleria
Trust Mortgage Loan, has a Cut-off Date Balance of $125,702,137 and
is evidenced
by a Mortgage Note designated as "Note A2" under the Glendale
Galleria
Intercreditor Agreement. The Glendale Galleria Trust Mortgage Loan,
the Glendale
Galleria Pari Passu Non-Trust Loan and the Glendale Galleria
Subordinate
Non-Trust Loans collectively constitute the Glendale Galleria Loan
Combination.
The relative rights of the holder of the Glendale Galleria Trust
Mortgage Loan
and the respective holders of the Glendale Galleria Non-Trust Loans
are set
forth in the Glendale Galleria Intercreditor Agreement. As and to
the extent
provided in the Glendale Galleria Intercreditor Agreement, the
Glendale Galleria
Pari Passu Non-Trust Loan is pari passu in right of payment and in
other
respects with the Glendale Galleria Trust Mortgage Loan, and the
Glendale
Galleria Subordinate Non-Trust Loans are subordinate in right of
payment and in
other respects to the Glendale Galleria Trust Mortgage Loan and the
Glendale
Galleria Pari Passu Non-Trust Loan.
There exist two (2) A-Note Trust Mortgage Loans, each of which is
part
of a group of loans comprised of that A-Note Trust Mortgage Loan
and another
mortgage loan, namely the related B-Note Non-Trust Loan, that are
both secured
by the same Mortgage encumbering the related Mortgaged Property.
Each A-Note
Trust Mortgage Loan and the related B-Note Non-Trust Loan
collectively
constitute an A/B Loan Combination. The relative rights of the
holder of each
A-Note Trust Mortgage Loan and the holder of the related B-Note
Non-Trust Loan
are set forth in the related Loan Combination Intercreditor
Agreement. As and to
the extent provided in the related Loan Combination Intercreditor
Agreement,
each B-Note Non-Trust Loan is subordinate in right of payment and
in other
respects to the related A-Note Trust Mortgage Loan.
Accordingly, as and to the extent provided herein, the Non-Trust
Loans, although not part of the Trust Fund, will be serviced and
administered in
accordance with this Agreement by the Master Servicer and the
Special Servicer.
The portion of the Trust Fund consisting of (i) the Class A-2FL
REMIC
II Regular Interest (and distributions thereon), the Class A-2FL
Swap Agreement
(and payments by the Class A-2FL Swap Counterparty thereunder) and
the
applicable sub-account of the Floating Rate Account and (ii)
amounts held from
time to time in the applicable sub-account of the Floating Rate
Account that
represent distributions on the Class A-2FL REMIC II Regular
Interest and
payments by the Class A-2FL Swap Counterparty under the Class A-2FL
Swap
Agreement, shall be treated as a grantor trust for federal income
tax purposes
and shall be designated as "Grantor Trust A-2FL"; provided that the
initial
up-front payment by the Class A-2FL Swap Counterparty to the
Depositor under the
Class A-2FL Swap Agreement shall belong to the Depositor and shall
not be part
of the Trust Fund or Grantor Trust A-2FL. As provided herein, the
Trustee shall
take all actions required hereunder to ensure that the portion of
the Trust Fund
consisting of the Grantor Trust A-2FL maintains its status as a
grantor trust
under federal income tax law and not be treated as part of REMIC I
or REMIC II.
The Class A-2FL Certificates shall represent undivided beneficial
interests in
Grantor Trust A-2FL as described herein.
The portion of the Trust Fund consisting of (i) the Class A-4FL
REMIC
II Regular Interest (and distributions thereon), the Class A-4FL
Swap Agreement
(and payments by the Class A-4FL Swap Counterparty thereunder) and
the
applicable sub-account of the Floating Rate Account and (ii)
amounts held from
time to time in the applicable sub-account of the Floating Rate
Account that
-3-
represent distributions on the Class A-4FL REMIC II Regular
Interest and
payments by the Class A-4FL Swap Counterparty under the Class A-4FL
Swap
Agreement, shall be treated as a grantor trust for federal income
tax purposes
and shall be designated as "Grantor Trust A-4FL". As provided
herein, the
Trustee shall take all actions required hereunder to ensure that
the portion of
the Trust Fund consisting of the Grantor Trust A-4FL maintains its
status as a
grantor trust under federal income tax law and not be treated as
part of REMIC I
or REMIC II. The Class A-4FL Certificates shall represent undivided
beneficial
interests in Grantor Trust A-4FL as described herein.
The portion of the Trust Fund consisting of (i) the Additional
Interest and the Additional Interest Account and (ii) amounts held
from time to
time in the Collection Account and/or the Additional Interest
Account that
represent Additional Interest shall be treated as a grantor trust
for federal
income tax purposes, and such grantor trust will be designated as
"Grantor Trust
Z". In addition, the portions of the Trust Fund consisting of (i)
the Excess
Servicing Strip and (ii) amounts held from time to time in the
Collection
Account that represent the Excess Servicing Strip shall be treated
as a grantor
trust for federal income tax purposes, and such grantor trust will
be designated
as "Grantor Trust E". In addition, the portions of the Trust Fund
consisting of
(i) the Broker Strip and (ii) amounts held from time to time in the
Collection
Account that represent the Broker Strip, shall be treated as a
grantor trust for
federal income tax purposes, and such grantor trust will be
designated as
"Grantor Trust B". 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, Grantor Trust E and Grantor
Trust B,
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:
-4-
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. The Columbia IV Shopping Center A-Note
Trust
Mortgage Loan and The Shoppes at Plantation A-Note Trust Mortgage
Loan are the
only A-Note Trust Mortgage Loans.
"A/B Loan Combination": Collectively, each A-Note Trust Mortgage
Loan
and the related B-Note Non-Trust Loan. The term "A/B Loan
Combination" shall
include any successor REO Loan with respect to the applicable
A-Note Trust
Mortgage Loan and any successor REO Loan with respect to the
related B-Note
Non-Trust Loan.
"Acceptable Insurance Default": With respect to any Mortgage Loan,
any
default under the related Mortgage Loan documents resulting from:
(i) the
exclusion of acts of terrorism from coverage under the related "all
risk"
casualty insurance policy maintained on the related Mortgaged
Property and (ii)
the related Mortgagor's failure to obtain insurance that
specifically covers
acts of terrorism, but, in each case, only if the Special Servicer
has
determined, in its reasonable judgment (exercised in accordance
with the
Servicing Standard), that (a) such insurance is not available at
commercially
reasonable rates and the subject hazards are not commonly insured
against by
prudent owners of similar real properties in similar locales (but
only by
reference to such insurance that has been obtained by such owners
at current
market rates) or (b) such insurance is not available at any rate.
Subject to the
Servicing Standard, in making any of the determinations required in
subclause
(a) or (b) of this definition, the Special Servicer shall be
entitled to rely on
the opinion of an insurance consultant.
"Accrued Certificate Interest": With respect to any Class of
Sequential Pay Certificates (other than the Class A-2FL
Certificates and the
Class A-4FL Certificates), the Class A-2FL REMIC II Regular
Interest or the
Class A-4FL REMIC II Regular Interest, for any Distribution Date,
one month's
interest at the Pass-Through Rate applicable to such Class of
Certificates, the
Class A-2FL REMIC II Regular Interest or the Class A-4FL REMIC II
Regular
Interest, as the case may be, for such Distribution Date, accrued
on the related
Class Principal Balance outstanding immediately prior to such
Distribution Date;
and with respect to the Class X Certificates for any Distribution
Date, the
aggregate of all Accrued Component Interest with respect to the
Class X
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, the Class A-2FL REMIC II Regular Interest or the
Class A-4FL REMIC
II Regular
-5-
Interest, 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 any Class X
Component,
for any Distribution Date, one month's interest at the Class X
Strip Rate with
respect to such Class X Component for such Distribution Date,
accrued on the
Component Notional Amount of such Class X 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 X 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-CKI1, Commercial Mortgage Pass-Through
Certificates,
Series 2005-CKI1, 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
-6-
Default Charges or amounts otherwise payable to any related
Non-Trust Noteholder
as provided herein) and amounts payable to the Special Servicer in
connection
with inspections of Mortgaged Properties required pursuant to the
first sentence
of Section 3.12(a) (and not otherwise paid from Default Charges or
amounts
otherwise payable to any related Non-Trust Noteholder as provided
herein), as
well as (without duplication) any of the expenses of the Trust Fund
that may be
withdrawn (x) pursuant to any of clauses (vii)(B), (ix), (xi),
(xii), (xiii),
(xv) and (xix) of Section 3.05(a) out of collections on the related
Trust
Mortgage Loans or REO Properties or out of general collections on
the Trust
Mortgage Loans and any REO Properties on deposit in the Collection
Account as
indicated in such clauses of Section 3.05(a), (y) pursuant to any
of clauses
(ix), (xi), (xii), (xiii) and (xvi) of Section 3.05(e) out of
collections on any
Loan Combination or any related Loan Combination REO Property on
deposit in the
related Loan Combination Custodial Account as indicated in such
clauses of
Section 3.05(e) (but only to the extent that such collections would
have
otherwise been transferred to the Collection Account with respect
to the related
Trust Mortgage Loan or any successor Trust REO Loan with respect
thereto), or
(z) pursuant to clause (ii) or any of clauses (iv) through (vi) of
Section
3.05(b) out of general collections on the Trust Mortgage Loans and
any REO
Properties on deposit in the Distribution Account; provided that
for purposes of
the allocations contemplated by Section 4.04 no such expense shall
be deemed to
have been incurred by the Trust Fund until such time as the payment
thereof is
actually made from the Collection Account, the related Loan
Combination
Custodial Account or the Distribution Account, as the case may be.
"Additional Yield and Prepayment Amount": With respect to any Class
of
Sequential Pay Certificates (other than any Excluded Class), the
Class A-2FL
REMIC II Regular Interest or the Class A-4FL REMIC II Regular
Interest, for any
Distribution Date on which distributions of principal are being
made with
respect to that Class of Certificates, the Class A-2FL REMIC II
Regular Interest
or the Class A-4FL REMIC II Regular Interest, as the case may be,
pursuant to
Section 4.01(a), provided that a Yield Maintenance Charge and/or
Prepayment
Premium was actually collected during the related Collection Period
on a Trust
Mortgage Loan or a Trust REO Loan (for purposes of this definition,
the "Prepaid
Loan") in the Loan Group as to which the Holders of such Class of
Certificates,
Grantor Trust A-2FL with respect to the Class A-2FL REMIC II
Regular Interest or
Grantor Trust A-4FL with respect to the Class A-4FL REMIC II
Regular Interest
are/is receiving payments of principal on such Distribution Date,
the product of
(a) such Yield Maintenance Charge and/or Prepayment Premium, net of
Workout Fees
and Principal Recovery Fees payable therefrom and net of any
portion of such
Yield Maintenance Charges and/or Prepayment Premiums applied
pursuant to Section
4.01(k) 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, the Class A-2FL REMIC II Regular Interest or the
Class A-4FL
REMIC II Regular Interest, as the case may be, 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, the
Class A-2FL REMIC II Regular Interest or the Class A-4FL REMIC II
Regular
Interest, as the case may be, on such Distribution Date (or, for so
long as the
Class A-6 and Class A-1A Certificates are outstanding, principal
distributable
on the subject Class of Sequential Pay Certificates, the Class
A-2FL REMIC II
Regular Interest or the Class A-4FL REMIC II Regular Interest, as
the case may
be, on that Distribution Date from collections on the applicable
Loan Group that
includes the Prepaid Loan), pursuant to Section 4.01(a), and the
denominator of
which is equal to the Principal Distribution Amount
-7-
(or, so long as the Class A-6 and Class A-1A Certificates are
outstanding, the
Loan Group 1 Principal Distribution Amount or the Loan Group 2
Principal
Distribution Amount, as applicable, based on which Loan Group
includes the
Prepaid Loan) for such Distribution Date.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event": As defined in Section 10.02(e).
"Adverse Rating Event": With respect to each Rating Agency that has
assigned a rating to any Class of rated Certificates, as of any
date of
determination, the qualification, downgrade or withdrawal of the
rating then
assigned to any such Class of rated Certificates by such Rating
Agency (or the
placing of any such Class of rated Certificates on "negative credit
watch"
status or "ratings outlook negative" status in contemplation of any
such action
with respect thereto).
"Adverse REMIC Event": As defined in Section 10.01(h).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such
specified Person.
For the purposes of this definition, "control" when used with
respect to any
specified Person means the power to direct the management and
policies of such
Person, directly or indirectly, whether through the ownership of
voting
securities, by contract or otherwise and the terms "controlling"
and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all
amendments
hereof and supplements hereto.
"Anticipated Repayment Date": For each ARD Loan, the date specified
in
the related Mortgage Note after which the rate per annum at which
interest
accrues on such ARD Loan will increase as specified in the related
Mortgage Note
(other than as a result of a default thereunder).
"Appraisal": With respect to any Mortgage Loan, an appraisal of the
related Mortgaged Property from an Independent Appraiser selected
by the Special
Servicer or the Master Servicer, as applicable, prepared in
accordance with 12
C.F.R. Section 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.
"Appraisal Reduction Amount": With respect to any Required
Appraisal
Mortgage Loan, the excess, if any, of: (a) an amount, as calculated
by the
Master Servicer, based on information provided by the Special
Servicer and in
consultation with the Controlling Class Representative, as of the
first
Determination Date immediately succeeding the date on which the
Master Servicer
obtains knowledge of the subject Mortgage Loan becoming a Required
Appraisal
Mortgage Loan, if no new Required Appraisal (or letter update or
internal
valuation) is required, or otherwise the date on which a Required
Appraisal (or
letter update or internal valuation, if applicable) is obtained,
and each
anniversary of such Determination Date thereafter so long as the
subject
Mortgage Loan remains a Required Appraisal Mortgage Loan, equal to
the sum
(without duplication) of (i) the Stated Principal
-8-
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) in the case
of the
Glendale Galleria 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 Glendale Galleria Pari Passu Non-Trust Loan
(or any
successor REO Loan with respect thereto) that is payable under any
Glendale
Galleria Pari Passu Non-Trust Loan Securitization Agreement; over
(b) an amount
equal to the sum of (i) the Required Appraisal Value and (ii) all
escrows,
reserves and letters of credit held as additional collateral held
with respect
to such Required Appraisal Mortgage Loan. If the Special Servicer
fails to
obtain a Required Appraisal (or letter update or internal
valuation, if
applicable) within the time limit described in Section 3.09(a), and
such
Required Appraisal (or letter update or internal valuation, if
applicable) is
required thereunder, then the Appraisal Reduction Amount for the
related
Required Appraisal Mortgage Loan will equal 25% of the Stated
Principal Balance
of such Required Appraisal Mortgage Loan, to be adjusted upon
receipt of a
Required Appraisal or letter update or internal valuation, if
applicable.
Notwithstanding anything herein to the contrary, the Glendale
Galleria
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 Glendale Galleria Loan
Combination shall be
allocated first to the Glendale Galleria Subordinate Non-Trust
Loans, in reverse
order of seniority (i.e., commencing with the most junior), in each
case up to
the outstanding principal balance thereof, and then to the Glendale
Galleria
Trust Mortgage Loan and the Glendale Galleria Pari Passu Non-Trust
Loan, on a
pro rata (based on their respective outstanding principal balances)
and pari
passu basis.
"Appraised Value": With respect to each Mortgaged Property and REO
Property, the appraised value thereof based upon the most recent
Appraisal (or
letter update or internal valuation, if applicable) that is
contained in the
related Servicing File upon which the Master Servicer, the Special
Servicer, the
Trustee and 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).
-9-
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or
instrument
executed by the Mortgagor in connection with the origination of the
related
Mortgage Loan.
"Assumed Periodic Payment": With respect to any Balloon Loan for
its
Stated Maturity Date (provided that such Mortgage Loan has not been
paid in full
and no other Liquidation Event has occurred in respect thereof on
or before such
Stated Maturity Date) and for any related Due Date thereafter as of
which such
Mortgage Loan remains outstanding and part of the Trust Fund (or,
in the case of
a Non-Trust Loan for any Due Date, as of which such Mortgage Loan
remains
outstanding and the related Trust Mortgage Loan remains part of the
Trust Fund),
the Periodic Payment of principal and/or interest deemed to be due
in respect
thereof on such Due Date equal to the Periodic Payment that would
have been due
in respect of such Mortgage Loan on such Due Date if the related
Mortgagor had
been required to continue to pay principal in accordance with the
amortization
schedule, if any, and to accrue interest at the Mortgage Rate, in
effect
immediately prior to, and without regard to the occurrence of, its
Stated
Maturity Date. With respect to any REO Loan, for any related Due
Date as of
which the related REO Property or any interest therein remains part
of the Trust
Fund, the Periodic Payment of principal and/or interest deemed to
be due in
respect thereof on such Due Date equal to the Periodic Payment that
would have
been due in respect of the predecessor Mortgage Loan on such Due
Date had it
remained outstanding (or, if the predecessor Mortgage Loan was a
Balloon Loan
and such Due Date coincides with or follows what had been its
Stated Maturity
Date, equal to the Assumed Periodic Payment that would have been
deemed due in
respect of the predecessor Mortgage Loan on such Due Date had it
remained
outstanding).
"Authenticating Agent": Any authenticating agent appointed pursuant
to
Section 8.12 (or, in the absence of any such appointment, the
Trustee).
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum, without duplication, of (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,
(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), (xix) and (xxi) of Section
3.05(a) or
(B) the Distribution Account pursuant to clauses (ii)-(vi) and (ix)
of Section
3.05(b), (iii) Prepayment Premiums and Yield Maintenance Charges,
(iv)
Additional Interest, (v) with respect to the Distribution Date
occurring in
February of each year and in January of each year that is
-10-
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 and in other respects 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.
"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).
"Broker Strip": With respect to each Broker Strip Loan, the right
to
receive interest accrued on the principal balance of such Mortgage
Loan at the
Broker Strip Rate for such Mortgage Loan.
"Broker Strip Loans": The Mortgage Loans listed on Schedule VIII
hereto.
"Broker Strip Payee": With respect to any Broker Strip Loan, the
"Broker Strip Payee" specified on Schedule VIII hereto with respect
to such
Mortgage Loan.
"Broker Strip Rate": With respect to each Broker Strip Loan, the
"Broker Strip Rate" specified on Schedule VIII hereto with respect
to such
Mortgage Loan.
"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 Kansas City, Missouri), or the offices of the Special Servicer
(which as of
the Closing
-11-
Date is McLean, Virginia), are located, are authorized or obligated
by law or
executive order to remain closed.
"Casualty/Condemnation Interest Shortfall": With respect to any
Trust
Mortgage Loan as to which a Casualty/Condemnation Principal
Prepayment was
received during any Collection Period and was applied to such
Mortgage Loan as
an unscheduled payment of principal prior to such Mortgage Loan's
Due Date in
such Collection Period, the amount of interest, to the extent not
collected from
the related Mortgagor, that would have accrued (at a rate per annum
equal to the
sum of (x) the related Net Mortgage Rate for such Mortgage Loan and
(y) the
Trustee Fee Rate) on the amount of such Casualty/Condemnation
Principal
Prepayment during the period commencing on the date as of which
such
Casualty/Condemnation Principal Prepayment was applied to such
Mortgage Loan and
ending on the day immediately preceding such Due Date, inclusive
(net of any
portion of such interest that would have constituted Penalty
Interest and/or
Additional Interest, if applicable).
"Casualty/Condemnation Principal Prepayment": With respect to any
Trust Mortgage Loan, any amounts constituting Insurance Proceeds or
amounts
received in connection with the taking of all or a part of a
Mortgaged Property
by the exercise of the power of eminent domain or condemnation,
that are applied
as an unscheduled principal prepayment in accordance with the
provisions of this
Pooling and Servicing Agreement, in reduction of the principal
balance of such
Mortgage Loan.
"CERCLA": The Comprehensive Environmental Response, Compensation
and
Liability Act of 1980, as amended.
"Certificate": Any one of the Merrill Lynch Mortgage Trust
2005-CKI1,
Commercial Mortgage Pass-Through Certificates, Series 2005-CKI1, as
executed by
the Certificate Registrar and authenticated and delivered hereunder
by the
Authenticating Agent.
"Certificate Factor": With respect to any Class of Sequential Pay
Certificates, the Class X Certificates, the Class A-2FL REMIC II
Regular
Interest or the Class A-4FL REMIC II Regular Interest, 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 or
Class X Notional Amount, as applicable, of such Class of
Certificates, the Class
A-2FL REMIC II Regular Interest or the Class A-4FL REMIC II Regular
Interest, as
the case may be, and the denominator of which is the Original Class
Principal
Balance or Original Notional Amount, as the case may be, of such
Class of
Certificates, the Class A-2FL REMIC II Regular Interest or the
Class A-4FL REMIC
II Regular Interest, as the case may be.
"Certificate Notional Amount": With respect to any Class X
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 X Notional
Amount.
"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.
-12-
"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 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
alphabetic or alphanumeric, as applicable, class designation.
"Class A Senior Certificates": The Class A-1, A-1D, Class A-2,
Class
A-2FL, Class A-3, Class A-4FL, Class A-5, Class A-SB, Class A-6 and
Class A-1A
Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
-13-
"Class A-1A Certificate": Any one of the Certificates with a "Class
A-1A" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-1D Certificate": Any one of the Certificates with a "Class
A-1D" 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-2FL Additional Fixed Swap Payment": With respect to any
Distribution Date and the Class A-2FL Swap Payment Date to which it
relates
based on the confirmation under the Class A-2FL Swap Agreement, the
applicable
"Additional Fixed Amount" within the meaning of the confirmation
under the Class
A-2FL Swap Agreement.
"Class A-2FL Available Funds": With respect to any Distribution
Date,
an amount equal to (a) the sum of (i) the total amount of all
principal and/or
interest distributions, as well as all distributions of Yield
Maintenance
Charges and Prepayment Premiums, properly made on or in respect of
the Class
A-2FL REMIC II Regular Interest with respect to such Distribution
Date and (ii)
the amounts, if any, received from the Class A-2FL Swap
Counterparty pursuant to
the Class A-2FL Swap Agreement for such Distribution Date, less (b)
any Class
A-2FL Net Fixed Swap Payment, Class A-2FL Additional Fixed Swap
Payment and
Class A-2FL Fixed Payer Shortfall Reimbursement Payment required to
be paid to
the Class A-2FL Swap Counterparty pursuant to the Class A-2FL Swap
Agreement,
consistent with Section 3.29, for such Distribution Date.
"Class A-2FL Certificate": Any one of the Certificates with a
"Class
A-2FL" designation on the face thereof, substantially in the form
of Exhibit A-1
hereto, and evidencing a proportionate interest in Grantor Trust
A-2FL.
"Class A-2FL Depositor's Retained Amount": The initial up-front
payment from the Class A-2FL Swap Counterparty to the Depositor
pursuant to the
Class A-2FL Swap Agreement.
"Class A-2FL Distribution Conversion": With respect to any
Distribution Date (i) immediately upon and during the continuation
of a Swap
Payment Default under the Class A-2FL Swap Agreement while the
Trustee is
pursuing remedies under the Class A-2FL Swap Agreement pursuant to
Section 3.29,
or (ii) immediately upon and following the termination of the Class
A-2FL Swap
Agreement until any replacement agreement is entered into, the
conversion of
distributions with respect to the Class A-2FL Certificates from
distributions
based, in part, on floating interest payments from the Class A-2FL
Swap
Counterparty under the Class A-2FL Swap Agreement to distributions
based solely
on distributions in respect of the Class A-2FL REMIC II Regular
Interest, as
specified in Section 4.01(c).
"Class A-2FL Fixed Swap Payment": With respect to any Distribution
Date and the Class A-2FL Swap Payment Date to which it relates
based on the
confirmation under the Class A-2FL
-14-
Swap Agreement, the applicable "Fixed Amount" within the meaning of
the
confirmation under the Class A-2FL Swap Agreement.
"Class A-2FL Fixed Payer Shortfall Reimbursement Payment": With
respect to any Distribution Date and the Class A-2FL Swap Payment
Date to which
it relates based on the confirmation under the Class A-2FL Swap
Agreement, the
applicable "Fixed Payer Shortfall Reimbursement Amount" within the
meaning of
the confirmation under the Class A-2FL Swap Agreement.
"Class A-2FL Floating Swap Payment": With respect to any
Distribution
Date and the Class A-2FL Swap Payment Date to which it relates
based on the
confirmation under the Class A-2FL Swap Agreement, the applicable
"Floating
Amount" within the meaning of the confirmation under the Class
A-2FL Swap
Agreement.
"Class A-2FL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the sum of (i) the
Distributable
Certificate Interest with respect to the Class A-2FL REMIC II
Regular Interest
for such Distribution Date and, to the extent not previously paid,
for all prior
Distribution Dates, (ii) any Class A-2FL Net Floating Swap Payment
received from
the Class A-2FL Swap Counterparty for distribution on such
Distribution Date and
(iii) if the Class A-2FL Swap Agreement is terminated and a
replacement Class
A-2FL Swap Agreement is not obtained, any related Swap Termination
Payment
collected during the related Collection Period, less (b) any Class
A-2FL Net
Fixed Swap Payment and/or Class A-2FL Fixed Payer Shortfall
Reimbursement
Payment made to the Class A-2FL Swap Counterparty with respect to
such
Distribution Date.
"Class A-2FL Net Fixed Swap Payment": With respect to any
Distribution
Date, the excess, if any of (i) the Class A-2FL Fixed Swap Payment
for that
Distribution Date over (ii) the Class A-2FL Floating Swap Payment
for that
Distribution Date.
"Class A-2FL Net Floating Swap Payment": With respect to any
Distribution Date, the excess, if any of (i) the Class A-2FL
Floating Swap
Payment for that Distribution Date over (ii) the Class A-2FL Fixed
Swap Payment
for that Distribution Date.
"Class A-2FL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal
allocated pursuant
to Section 4.01 in respect of the Class A-2FL REMIC II Regular
Interest on such
Distribution Date.
"Class A-2FL REMIC II Regular Interest": The uncertificated
interest
in REMIC II, designated as "Class A-2FL", constituting a "regular
interest" in
REMIC II for purposes of the REMIC Provisions and having the
characteristics
attributable thereto in this Agreement.
"Class A-2FL Sub-Account": As defined in Section 3.04(f).
"Class A-2FL Swap Agreement": With respect to the Class A-2FL
Certificates and the Class A-2FL REMIC II Regular Interest, the
applicable
interest rate swap agreement consisting of the ISDA 2002 Master
Agreement,
together with the related schedule, confirmation and any annexes
thereto, dated
as of December 7, 2005, by and among the Class A-2FL Swap
Counterparty and the
Trustee, solely in its capacity as Trustee, on behalf of the Trust,
or any
replacement interest rate swap agreement entered into by the
Trustee in
accordance with the terms of Section 3.29,
"Class A-2FL Swap Counterparty": Merrill Lynch Capital Services,
Inc.
or its successor in interest or any swap counterparty under a
replacement Class
A-2FL Swap Agreement.
-15-
"Class A-2FL Swap Payment Date": The "Payment Date" within the
meaning
of the confirmation under the Class A-2FL Swap Agreement.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-4FL Additional Fixed Swap Payment": With respect to any
Distribution Date and the Class A-4FL Swap Payment Date to which it
relates
based on the confirmation under the Class A-4FL Swap Agreement, the
applicable
"Additional Fixed Amount" within the meaning of the confirmation
under the Class
A-4FL Swap Agreement.
"Class A-4FL Available Funds": With respect to any Distribution
Date,
an amount equal to (a) the sum of (i) the total amount of all
principal and/or
interest distributions, as well as all distributions of Yield
Maintenance
Charges and Prepayment Premiums, properly made on or in respect of
the Class
A-4FL REMIC II Regular Interest with respect to such Distribution
Date and (ii)
the amounts, if any, received from the Class A-4FL Swap
Counterparty pursuant to
the Class A-4FL Swap Agreement for such Distribution Date, less (b)
any Class
A-4FL Net Fixed Swap Payment, Class A-4FL Additional Fixed Swap
Payment and
Class A-4FL Fixed Payer Shortfall Reimbursement Payment required to
be paid to
the Class A-4FL Swap Counterparty pursuant to the Class A-4FL Swap
Agreement,
consistent with Section 3.29, for such Distribution Date.
"Class A-4FL Certificate": Any one of the Certificates with a
"Class
A-4FL" designation on the face thereof, substantially in the form
of Exhibit A-1
hereto, and evidencing a proportionate interest in Grantor Trust
A-4FL.
"Class A-4FL Distribution Conversion": With respect to any
Distribution Date (i) immediately upon and during the continuation
of a Swap
Payment Default under the Class A-4FL Swap Agreement while the
Trustee is
pursuing remedies under the Class A-4FL Swap Agreement pursuant to
Section 3.29,
or (ii) immediately upon and following the termination of the Class
A-4FL Swap
Agreement until any replacement agreement is entered into, the
conversion of
distributions with respect to the Class A-4FL Certificates from
distributions
based, in part, on floating interest payments from the Class A-4FL
Swap
Counterparty under the Class A-4FL Swap Agreement to distributions
based solely
on distributions in respect of the Class A-4FL REMIC II Regular
Interest, as
specified in Section 4.01(c).
"Class A-4FL Fixed Swap Payment": With respect to any Distribution
Date and the Class A-4FL Swap Payment Date to which it relates
based on the
confirmation under the Class A-4FL Swap Agreement, the applicable
"Fixed Amount"
within the meaning of the confirmation under the Class A-4FL Swap
Agreement.
"Class A-4FL Fixed Payer Shortfall Reimbursement Payment": With
respect to any Distribution Date and the Class A-4FL Swap Payment
Date to which
it relates based on the confirmation under the Class A-4FL Swap
Agreement, the
applicable "Fixed Payer Shortfall Reimbursement Amount" within the
meaning of
the confirmation under the Class A-4FL Swap Agreement.
-16-
"Class A-4FL Floating Swap Payment": With respect to any
Distribution
Date and the Class A-4FL Swap Payment Date to which it relates
based on the
confirmation under the Class A-4FL Swap Agreement, the applicable
"Floating
Amount" within the meaning of the confirmation under the Class
A-4FL Swap
Agreement.
"Class A-4FL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the sum of (i) the
Distributable
Certificate Interest with respect to the Class A-4FL REMIC II
Regular Interest
for such Distribution Date and, to the extent not previously paid,
for all prior
Distribution Dates, (ii) any Class A-4FL Net Floating Swap Payment
received from
the Class A-4FL Swap Counterparty for distribution on such
Distribution Date and
(iii) if the Class A-4FL Swap Agreement is terminated and a
replacement Class
A-4FL Swap Agreement is not obtained, any related Swap Termination
Payment
collected during the related Collection Period, less (b) any Class
A-4FL Net
Fixed Swap Payment and/or Class A-4FL Fixed Payer Shortfall
Reimbursement
Payment made to the Class A-4FL Swap Counterparty with respect to
such
Distribution Date.
"Class A-4FL Net Fixed Swap Payment": With respect to any
Distribution
Date, the excess, if any of (i) the Class A-4FL Fixed Swap Payment
for that
Distribution Date over (ii) the Class A-4FL Floating Swap Payment
for that
Distribution Date.
"Class A-4FL Net Floating Swap Payment": With respect to any
Distribution Date, the excess, if any of (i) the Class A-4FL
Floating Swap
Payment for that Distribution Date over (ii) the Class A-4FL Fixed
Swap Payment
for that Distribution Date.
"Class A-4FL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal
allocated pursuant
to Section 4.01 in respect of the Class A-4FL REMIC II Regular
Interest on such
Distribution Date.
"Class A-4FL REMIC II Regular Interest": The uncertificated
interest
in REMIC II, designated as "Class A-4FL", constituting a "regular
interest" in
REMIC II for purposes of the REMIC Provisions and having the
characteristics
attributable thereto in this Agreement.
"Class A-4FL Sub-Account": As defined in Seciton 3.04(f).
"Class A-4FL Swap Agreement": With respect to the Class A-4FL
Certificates and the Class A-4FL REMIC II Regular Interest, the
applicable
interest rate swap agreement consisting of the ISDA 2002 Master
Agreement,
together with the related schedule, confirmation and any annexes
thereto, dated
as of December 7, 2005, by and among the Class A-4FL Swap
Counterparty and the
Trustee, solely in its capacity as Trustee, on behalf of the Trust,
or any
replacement interest rate swap agreement entered into by the
Trustee in
accordance with the terms of Section 3.29,
"Class A-4FL Swap Counterparty": Merrill Lynch Capital Services,
Inc.
or its successor in interest or any swap counterparty under a
replacement Class
A-4FL Swap Agreement.
"Class A-4FL Swap Payment Date": The "Payment Date" within the
meaning
of the confirmation under the Class A-4FL Swap Agreement.
"Class A-5 Certificate": Any one of the Certificates with a "Class
A-5" 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.
-17-
"Class A-6 Certificate": Any one of the Certificates with a "Class
A-6" 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 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 Schedule IV 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.
-18-
"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.
"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, the Class A-2FL REMIC II
Regular Interest
or the Class A-4FL REMIC II Regular Interest, as the case may be,
outstanding
from time to time. As of the Closing Date, the Class Principal
Balance of each
Class of Sequential Pay Certificates, the Class A-2FL REMIC II
Regular Interest
and the Class A-4FL REMIC II Regular Interest shall equal the
Original Class
Principal Balance thereof. On each Distribution Date, the Class
Principal
Balance of each of the respective Classes of the Sequential Pay
Certificates
(exclusive of the Class A-2FL Certificates and the Class A-4FL
Certificates),
the Class A-2FL REMIC II Regular Interest and the Class A-4FL REMIC
II Regular
Interest 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 the first paragraph of Section 4.04(a). The respective
Class
Principal Balances of the various Classes of Sequential Pay
Certificates
(exclusive of the Class A-2FL Certificates and the Class A-4FL
Certificates),
the Class A-2FL REMIC II Regular Interest and the Class A-4FL REMIC
II Regular
Interest shall be increased, as and to the extent and in the order
provided in
the second paragraph of Section 4.04(a), in connection with 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.
Distributions in respect
of a reimbursement of Realized Losses and Additional Trust Fund
Expenses
previously allocated to a Class of Sequential Pay Certificates, the
Class A-2FL
REMIC II Regular Interest and the Class A-4FL REMIC II Regular
Interest, as the
case may be, shall not constitute distributions of principal and
shall not
result in reduction of the related Class Principal
-19-
Balance. The Class Principal Balance of the Class A-4FL
Certificates shall at
all times equal the Class Principal Balance of the Class A-4FL
REMIC II Regular
Interest.
"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 Certificate": Any one of the Certificates with a "Class X"
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 X Component": Any of the 26 components of the Class X
Certificates listed in the following table.
Class Designation
Class X
of Corresponding
Component
Certificates
---------
-----------------
X-A-1
A-1
X-A-1A
A-1A
X-A-1D
A-1D
X-A-2
A-2
X-A-3
A-3
X-A-4
A-4
X-A-4FL
A-4FL
X-A-5
A-5
X-A-SB
A-SB
X-A-6
A-6
X-AM
AM
X-AJ
AJ
X-B
B
X-C
C
X-D
D
X-E
E
X-F
F
X-G
G
X-H
H
X-J
J
-20-
Class Designation
Class X
of Corresponding
Component
Certificates
---------
-----------------
X-K
K
X-L
L
X-M
M
X-N
N
X-P
P
X-Q
Q
"Class X Notional Amount": With respect to the Class X Certificates
and any date of determination, the sum of the then Component
Notional Amounts of
all of the Class X Components.
"Class X Strip Rate": With respect to any Class X 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 (or, in the
case of the
Class A-2FL Certificates, for the Class A-2FL REMIC II Regular
Interest and, in
the case of the Class A-4FL Certificates, for the Class A-4FL REMIC
II Regular
Interest) for such Distribution Date. In no event, however, shall
any Class X
Strip Rate be less than zero.
"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.
"Clearstream": Clearstream Banking, Luxembourg or any successor.
"Closing Date": December 7, 2005.
"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.
-21-
"CMSA Bond Level File": The monthly report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Bond Level File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Collateral Summary File": A report substantially in the form
of,
and containing the information called for in, the downloadable form
of the
"Collateral Summary File" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Comparative Financial Status Report": A report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Comparative Financial Status Report" available as of the
Closing Date on
the CMSA Website, or such other form for the presentation of such
information
and containing such additional information as may from time to time
be
recommended by the CMSA for commercial mortgage-backed securities
transactions
generally.
"CMSA Delinquent Loan Status Report": A report substantially in the
form of, and containing the information called for in, the
downloadable form of
the "Delinquent Loan Status Report" available as of the Closing
Date on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of
the
"Financial File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
"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
-22-
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage securities transactions generally.
"CMSA Loan Periodic Update File": The monthly report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Loan Periodic Update File" available as of the Closing Date
on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA Loan Setup File": A report substantially in the form of, and
containing the information called for in, the downloadable form of
the "Loan
Setup File" available as of the Closing Date on the CMSA Website,
or such other
form for the presentation of such information and containing such
additional
information as may from time to time be recommended by the CMSA for
commercial
mortgage-backed securities transactions generally.
"CMSA NOI Adjustment Worksheet": A report substantially in the form
of, and containing the information called for in, the downloadable
form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally, and
in any event,
shall present the computations made in accordance with the
methodology described
in such form to "normalize" the full year net operating income, net
cash flow
and debt service coverage numbers used in the other reports
required by this
Agreement.
"CMSA Operating Statement Analysis Report": A report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Operating Statement Analysis Report" available as of the
Closing Date on
the CMSA Website or in such other form for the presentation of such
information
and containing such additional information as may from time to time
be
recommended by the CMSA for commercial mortgage-backed securities
transactions
generally.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of
the "Property
File" available as of the Closing Date 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.
-23-
"CMSA Servicer Watch List": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "Servicer
Watch List" available as of the Closing Date on the CMSA Website,
or in such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Special Servicer Loan File": A report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Special Servicer Loan File" on the CMSA Website, or in such other
form for the
presentation of such information and containing such additional
information as
may from time to time be recommended by the CMSA for commercial
mortgage
securities transactions generally.
"CMSA Website": The CMSA's website located at "www.cmbs.org" or
such
other primary website as the CMSA may establish for dissemination
of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended, and
applicable
temporary or final regulations of the U.S. Department of the
Treasury
promulgated thereunder.
"Collection Account": One or more segregated accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the
Trustee in trust for the Certificateholders, which shall be
entitled: "KeyCorp
Real Estate Capital Markets, 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-CKI1, Commercial Mortgage
Pass-Through
Certificates, Series 2005-CKI1".
"Collection Period": Individually and collectively, as the context
may
require: with respect to each Mortgage Loan and any successor REO
Loan with
respect thereto, for any Distribution Date, 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
KeyBank Trust
Mortgage Loans, as applicable.
"Columbia IV Shopping Center A-Note Trust Mortgage Loan": The
A-Note
Trust Mortgage Loan identified as loan number 118 on the Mortgage
Loan Schedule
and as being secured by retail property identified as Columbia IV
Shopping
Center.
"Columbia IV Shopping Center B-Note Non-Trust Loan": The B-Note
Non-Trust Loan that relates to the Columbia IV Shopping Center
A-Note Trust
Mortgage Loan.
-24-
"Component Notional Amount": With respect to each Class X 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
to be 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 asset-backed securities
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-CKI1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-CKI1.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially
Serviced Mortgage Loan but has ceased to be a Specially Serviced
Mortgage Loan
in accordance with the definition of "Specially Serviced Mortgage
Loan".
"Corresponding Certificates": With respect to any REMIC I Regular
Interest, the Class of Sequential Pay Certificates for which such
REMIC I
Regular Interest is the Corresponding REMIC I Regular Interest.
With respect to
any Class X Component, the Class of Sequential Pay Certificates
designated as
the "Corresponding Certificates" for such Class X Component in the
definition of
"Class X Component".
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Class of Sequential Pay
Certificates.
With respect to the Class A-2FL REMIC II Regular Interest, REMIC I
Regular
Interest LA-2FL. With respect to the Class A-4FL REMIC II Regular
Interest,
REMIC I Regular Interest LA-4FL. With respect to any Class X
Component, the
REMIC I Regular Interest that, with the replacement of "L" with
"X-", at the
beginning of its designation, has the same alphabetic or
alphanumeric
designation as such Class X 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 December 1, 2005, between the
Depositor and
Countrywide and relating to the transfer of the Countrywide Trust
Mortgage Loans
to the Depositor.
-25-
"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, the related Due Date
of such
Mortgage Loan in December 2005; or, with respect to those Mortgage
Loans, if
any, that have their first Due Date in January 2006, December 1,
2005.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the
Cut-off Date,
after application of all unscheduled payments of principal received
on or before
such date and the principal component of all Periodic Payments due
on or before
such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Trust Mortgage
Loan, as of any date of determination, the ratio of (x) the
annualized Net
Operating Income (before payment of any debt service on such
Mortgage Loan
generated by the related Mortgaged Property during the most
recently ended
period of not less than six months and not more than twelve months
for which
financial statements, if available (whether or not audited) have
been received
by or on behalf of the related Mortgage Loan Seller (prior to the
Closing Date
or, in the case of a Qualified Substitute Mortgage Loan, prior to
the relevant
date of determination) or the Master Servicer or the Special
Servicer (following
the Closing Date), to (y) twelve times the amount of the Periodic
Payment in
effect for such Mortgage Loan as of such date of determination or,
in the case
of the Glendale Galleria Trust Mortgage Loan, twelve times the
amount of the
aggregate Periodic Payment in effect for the Glendale Galleria
Trust Mortgage
Loan and the Glendale Galleria Pari Passu Non-Trust Loan as of such
date of
determination.
"Default Charges": Penalty Interest and/or late payment charges
that
are paid or payable, as the context may require, in respect of any
Mortgage Loan
or REO Loan.
"Defaulted Mortgage Loan": A Mortgage Loan: (i) that is (A)
delinquent
60 days or more in respect of a Periodic Payment (not including the
Balloon
Payment) or (B) delinquent one day or more in respect of its
Balloon Payment, in
either case such delinquency to be determined 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.
-26-
"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
Glendale Galleria
Trust Mortgage Loan, the then outstanding principal balance of such
Mortgage
Loan, and (ii) in the case of the Glendale Galleria Trust Mortgage
Loan or any
other Mortgage Loan in a Loan Combination, 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, and (ii) 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).
-27-
"Directly Operate": With respect to any REO Property, the
furnishing
or rendering of services to the tenants thereof, the management of
such REO
Property, the holding of such REO Property primarily for sale or
lease or the
performance of any construction work thereon, in each case other
than through an
Independent Contractor; provided, however, that the Trustee (or the
Special
Servicer or any Sub-Servicer on behalf of the Trustee) shall not be
considered
to Directly Operate an REO Property solely because the Trustee (or
the Special
Servicer or any Sub-Servicer on behalf of the Trustee) establishes
rental terms,
chooses tenants, enters into or renews leases, deals with taxes and
insurance,
or makes decisions as to repairs or capital expenditures with
respect to such
REO Property.
"Discount Rate": With respect to any prepaid Trust Mortgage Loan or
Trust REO Loan for purposes of allocating any Prepayment Premium or
Yield
Maintenance Charge received thereon or with respect thereto among
the respective
Classes of the Sequential Pay Certificates (other than any Excluded
Class
thereof), the Class A-2FL REMIC II Regular Interest and the Class
A-4FL REMIC II
Regular Interest, 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
-28-
federal tax imposed under the Code that would not otherwise be
imposed but for
the Transfer of an Ownership Interest in a Residual Certificate to
such Person.
The terms "United States", "State" and "international organization"
shall have
the meanings set forth in Section 7701 of the Code or successor
provisions.
"Disqualified Partnership": Any domestic entity classified as a
partnership under the Code, if any of its beneficial owners are
Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest": With respect to any Class of
Regular Certificates, the Class A-2FL REMIC II Regular Interest or
the Class
A-4FL REMIC II Regular Interest for any Distribution Date, the
Accrued
Certificate Interest in respect of such Class of Certificates, the
Class A-2FL
REMIC II Regular Interest or the Class A-4FL REMIC II Regular
Interest, as the
case may be, 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 the subject Class of
Certificates, the Class
A-2FL REMIC II Regular Interest or the Class A-4FL REMIC II Regular
Interest, as
the case may be, 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 (exclusive of the Class A-2FL
Certificates and the
Class A-4FL Certificates), the Class A-2FL REMIC II Regular
Interest and the
Class A-4FL REMIC II Regular Interest, as the case may be, for such
Distribution
Date; provided that, if the aggregate Class Principal Balance of
the Sequential
Pay Certificates (exclusive of the Class A-2FL Certificates and the
Class A-4FL
Certificates), the Class A-2FL REMIC II Regular Interest or the
Class A-4FL
REMIC II Regular Interest 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 (exclusive of the Class A-2FL
Certificates and the
Class A-4FL Certificates), the Class A-2FL REMIC II Regular
Interest and/or the
Class A-4FL REMIC II Regular Interest as provided in the definition
of "Class
Principal Balance" and the second paragraph of Section 4.04(a),
then the amount
of Distributable Certificate Interest with respect to each Class of
Regular
Certificates, the Class A-2FL REMIC II Regular Interest and/or the
Class A-4FL
REMIC II Regular Interest 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, the Class A-2FL REMIC II Regular Interest or
the Class
A-4FL REMIC II Regular Interest 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-CKI1, Commercial
Mortgage
Pass-Through Certificates, Series 2005-CKI1".
"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 January 2006.
"Distribution Date Statement": As defined in Section 4.02(a).
-29-
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior to
its
Stated Maturity Date, the day of the month set forth in the related
Mortgage
Note on which each Periodic Payment on such Mortgage Loan is
scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date,
the day of the
month set forth in the related Mortgage Note on which each Periodic
Payment on
such Mortgage Loan had been scheduled to be first due; and (iii)
any REO Loan,
the day of the month set forth in the related Mortgage Note on
which each
Periodic Payment on the related Mortgage Loan had been scheduled to
be first
due.
"Eligible Account": Any of (i) an account maintained with a federal
or
state chartered depository institution or trust company, and (a)
with respect to
deposits held for 30 days or more in such account, the long-term
deposit or
unsecured debt obligations of which are rated at least "AA" by
S&P (or "A-"
provided the short-term unsecured debt obligations are rated at
least "A-1" by
S&P) 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 or a Glendale Galleria Related MBS Adverse Rating Event, as
evidenced in
writing by the applicable Rating Agency), at any time such funds
are on deposit
therein, or (b) with respect to deposits held for less than 30 days
in such
account, the short-term deposits of which are rated at least "A-1"
by S&P 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 or a
Glendale Galleria Related MBS Adverse Rating Event) as evidenced in
writing by
the applicable Rating Agency at any time such funds are on deposit
therein, (ii)
an account or accounts maintained with KeyBank so long as KeyBank
(1) has a
long-term unsecured debt rating of at least "A-" and a short-term
rating of at
least "A-1" from S&P 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)
an account or
accounts maintained with PNC Bank National Association so long as
it (1) has a
long-term unsecured debt rating of at least "A" and a short-term
rating of at
least "A-1" from S&P 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, (iv) 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. Section 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 (v) any other
account the use
of which would not, in and of itself, cause an Adverse Rating Event
or a
Glendale Galleria Related MBS 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.
"Euroclear": The Euroclear System or any successor.
"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,
-30-
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 Trust Mortgage Loan
and
Trust 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, (ii) the
primary servicing fee rate, if any, for such Mortgage Loan or REO
Loan and (iii)
with respect to any Broker Strip Loan, the Broker Strip Rate for
such Broker
Strip 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": The Securities Exchange Act of 1934, as amended.
"Excluded Class": Any Class of Sequential Pay Certificates other
than
the Class A-1, Class A-1D, Class A-2, Class A-3, Class A-5, Class
A-SB, Class
A-6, Class A-1A, Class AM, Class AJ, Class B, Class C, Class D,
Class E, Class
F, Class G and Class H Certificates.
"Exemption": Either of Department of Labor Prohibited Transaction
Exemption ("PTE") 90-29 (as amended by PTE 97-34, PTE 2000-58 and
PTE 2002-41)
or PTE 2000-55 (as amended by PTE 2000-58 and PTE 2002-41), as each
may be
amended from time to time, or any successor thereto, all as issued
by the U.S.
Department of Labor.
"Exemption-Favored Party": Any of (i) MLPF&S or Countrywide
Securities, (ii) any Person directly or indirectly, through one or
more
intermediaries, controlling, controlled by or under common control
with MLPF&S
or Countrywide Securities, and (iii) any member of any underwriting
syndicate or
selling group of which any Person described in clauses (i) and (ii)
is a manager
or co-manager with respect to a Class of Investment Grade
Certificates.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Specially Serviced Mortgage Loan,
Corrected
Mortgage Loan or REO Property (other than a Mortgage Loan or REO
Property, as
the case may be, that was purchased or replaced by any of the
Mortgage Loan
Sellers pursuant to the applicable Mortgage Loan Purchase
Agreement, or that was
purchased by the Plurality Subordinate Certificateholder (or the
Controlling
Class Representative) or the Special Servicer or any assignee of
the foregoing
pursuant to Section 3.18, or by the related B-Noteholder (in the
case of an
A-Note Trust Mortgage Loan) or by the Glendale Galleria Pari Passu
Noteholder or
a Glendale Galleria Subordinate Noteholder (in the case of the
Glendale Galleria
Trust Mortgage Loan), in each case pursuant to the related Loan
Combination
Intercreditor Agreement or by the Master Servicer, the Special
Servicer or the
Plurality Subordinate Certificateholder (or the Controlling Class
Representative) pursuant to Section 9.01) that there has been a
recovery of all
-31-
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.
"Fiscal Agent": ABN AMRO Bank N.V., its successor in interest, or
any
successor fiscal agent appointed as herein provided.
"Floating Rate Account": The segregated accounts or sub-accounts
(which may be sub-accounts of the Distribution Account) created and
maintained
by the Trustee pursuant to Section 3.04(f), in trust for: (i) in
the case of the
Class A-2FL Certificates and the Class A-2FL REMIC II Regular
Interest, the
holders of Class A-2FL Certificates and the Class A-2FL Swap
Counterparty, as
their interests may appear, 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-CKI1, Commercial Mortgage
Pass-Through
Certificates, Series 2005-CKI1, Class A-2FL, and Merrill Lynch
Capital Services,
Inc., as their interests may appear, Floating Rate Account"; and
(ii) in the
case of the Class A-4FL Certificates and the Class A-4FL REMIC II
Regular
Interest, the holders of the Class A-4FL Certificates and the Class
A-4FL Swap
Counterparty, as their interests may appear, 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-CKI1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-CKI1, Class A-4FL,
and Merrill
Lynch Capital Services, Inc., as their interests may appear,
Floating Rate
Account".
"FNMA": Federal National Mortgage Association or any successor.
"Form 8-K": Form 8-K under the Exchange Act and/or any successor or
equivalent form(s) adopted by the Securities and Exchange
Commission.
"Form 8-K Current Report": A current report on Form 8-K.
"Form 10-K": Form 10-K under the Exchange Act and/or any successor
or
equivalent form(s) adopted by the Securities and Exchange
Commission.
"Form 10-K Annual Report": An annual report on Form 10-K.
"Gain-on-Sale Proceeds": With respect to any Trust Mortgage Loan or
Trust REO Loan, the excess, if any, of (i) any and all Liquidation
Proceeds
collected with respect to such Mortgage Loan or the related REO
Property, as the
case may be, net of any related liquidation expenses, P&I
Advances, Servicing
Advances, Principal Recovery Fees, interest on Advances, Master
Servicing Fees,
Special Servicing Fees and Additional Trust Fund Expenses, and if
applicable,
further net of any portion of such Liquidation Proceeds payable to
the related
Non-Trust Noteholder(s) (if any), over (ii) the Purchase Price for
such Trust
Mortgage Loan or Trust REO Loan, as the case may be, on the date on
which such
Liquidation Proceeds were received.
"Gain-on-Sale Reserve Account": A segregated custodial account
(which
may be a sub-account of the Distribution Account) created and
maintained by the
Trustee pursuant to Section 3.04(e) 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-CKI1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-CKI1, Gain-on-Sale
Reserve
Account".
-32-
"Glendale Galleria Controlling Party": The "Directing Co-Lender"
within the meaning of the Glendale Galleria Intercreditor
Agreement, which prior
to the occurrence of a Glendale Galleria Control Appraisal Event
with respect to
each Glendale Galleria Subordinate Non-Trust Loan, shall be, as of
any date of
determination, the holder of the most junior Glendale Galleria
Subordinate
Non-Trust Loan as to which a Glendale Galleria Control Appraisal
Event has not
occurred and is continuing, and, following the occurrence of a
Glendale Galleria
Control Appraisal Event with respect to each Glendale Galleria
Subordinate
Non-Trust Loan, shall be the Controlling Class Representative.
"Glendale Galleria Control Appraisal Event": The existence of a
"Note
C Appraisal Reduction Period" and/or a "Note B Appraisal Reduction
Period"
within the meaning of the Glendale Galleria Intercreditor
Agreement.
"Glendale Galleria Intercreditor Agreement": Collectively, the Note
A
Intercreditor Agreement, dated November 16, 2005, between the
Trust, as holder
of the Glendale Galleria Trust Mortgage Loan and the Glendale
Galleria Pari
Passu Noteholder, and the Amended and Restated Co-Lender Agreement,
dated
November 16, 2005, between the Trust as holder of the Glendale
Galleria Trust
Mortgage Loan and the holders of the Glendale Galleria Non-Trust
Loans.
"Glendale Galleria Loan Combination": Collectively, the Glendale
Galleria Trust Mortgage Loan, the Glendale Galleria Pari Passu
Non-Trust Loan
and the Glendale Galleria Subordinate Non-Trust Loans. The term
"Glendale
Galleria Loan Combination" shall include any successor REO Loans
with respect to
the Glendale Galleria Trust Mortgage Loan, the Glendale Galleria
Pari Passu
Non-Trust Loan and the Glendale Galleria Subordinate Non-Trust
Loans.
"Glendale Galleria Mortgaged Property": The Mortgaged Property
identified on the Mortgage Loan Schedule as Glendale Galleria.
"Glendale Galleria Non-Trust Loan": Any Glendale Galleria
Subordinate
Non-Trust Loan or the Glendale Galleria Pari Passu Non-Trust Loan,
as the case
may be.
"Glendale Galleria B-Note Loan": The Glendale Galleria Subordinate
Non-Trust Loan designated as "Note B" under the Glendale Galleria
Intercreditor
Agreement.
"Glendale Galleria C-Note Loan": The Glendale Galleria Subordinate
Non-Trust Loan designated as "Note C" under the Glendale Galleria
Intercreditor
Agreement.
"Glendale Galleria Pari Passu Non-Trust Loan": The Mortgage Loan in
the original principal amount of $126,000,000, that is secured by
the same
Mortgage encumbering the Glendale Galleria Mortgaged Property as
the Glendale
Galleria Trust Mortgage Loan and that is pari passu in right of
payment and
other respects to the Glendale Galleria Trust Mortgage Loan.
"Glendale Galleria Pari Passu Non-Trust Loan Related MBS": Any
securities evidencing an interest in, or secured by, the Glendale
Galleria Pari
Passu Non-Trust Loan or any successor REO Loan with respect
thereto.
"Glendale Galleria Pari Passu Non-Trust Loan Securitization
Agreement": Any agreement governing the securitization of the
Glendale Galleria
Pari Passu Non-Trust Loan or any successor REO Loan with respect
thereto.
-33-
"Glendale Galleria Pari Passu Noteholder": The holder of the
Glendale
Galleria Pari Passu Non-Trust Loan.
"Glendale Galleria Related MBS Adverse Rating Event" With respect
to
each Rating Agency that assigned a rating to any class of Glendale
Galleria Pari
Passu Non-Trust Loan Related MBS, 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).
"Glendale Galleria REO Property": With respect to the Glendale
Galleria Loan Combination, the related Loan Combination REO
Property.
"Glendale Galleria Specially Designated Servicing Actions":
Proposed
actions of the Special Servicer in respect of which the consent of
the Glendale
Galleria Controlling Party and, in some cases, the holder of the
Glendale
Galleria B-Note Loan is required, as set forth in Section 4 of the
Glendale
Galleria Intercreditor Agreement.
"Glendale Galleria Subordinate Non-Trust Loan": Each of the
Mortgage
Loans, other than the Glendale Galleria Trust Mortgage Loan and the
Glendale
Galleria Pari Passu Non-Trust Loan, that are secured by the same
Mortgage
encumbering the Glendale Galleria Mortgaged Property as the
Glendale Galleria
Trust Mortgage Loan and the Glendale Galleria Pari Passu Non-Trust
Loan, and
that are subordinate in right of payment and in other respects to
the Glendale
Galleria Trust Mortgage Loan and the Glendale Galleria Pari Passu
Non-Trust
Loan. The Glendale Galleria Subordinate Non-Trust Loans shall not
be part of the
Mortgage Pool and will not be considered Trust Mortgage Loans. The
Glendale
Galleria Pari Passu Non-Trust Loan shall not be part of the
Mortgage Pool and
will not be considered a Trust Mortgage Loan.
"Glendale Galleria Subordinate Noteholder": Any holder of any
Glendale
Galleria Subordinate Non-Trust Loan.
"Glendale Galleria Trust Mortgage Loan": The Mortgage Loan secured
by
the Glendale Galleria Mortgaged Property and included in the Trust
Fund.
"Global Certificate": With respect to any Class of Book-Entry
Non-Registered Certificates, either the related Rule 144A Global
Certificate or
the related Regulation S Global Certificate.
"Grantor Trust A-2FL": That certain "grantor trust" (within the
meaning of the Grantor Trust Provisions), the assets of which
consist of (i) the
Class A-2FL REMIC II Regular Interest and distributions thereon,
(ii) the Class
A-2FL Swap Agreement and, except for the Class A-2FL Depositor's
Retained
Amount, payments by the Class A-2FL Swap Counterparty thereunder
and (iii) the
applicable sub-account of the Floating Rate Account, intended to be
treated as a
"grantor trust" within the meaning of the Grantor Trust Provisions.
"Grantor Trust A-2FL Assets": The segregated pool of assets
comprising
Grantor Trust A-2FL.
-34-
"Grantor Trust A-4FL": That certain "grantor trust" (within the
meaning of the Grantor Trust Provisions), the assets of which
consist of (i) the
Class A-4FL REMIC II Regular Interest and distributions thereon,
(ii) the Class
A-4FL Swap Agreement and payments by the Class A-4FL Swap
Counterparty
thereunder and (iii) the applicable sub-account of the Floating
Rate Account,
intended to be treated as a "grantor trust" within the meaning of
the Grantor
Trust Provisions.
"Grantor Trust A-4FL Assets": The segregated pool of assets
comprising
Grantor Trust A-4FL.
"Grantor Trust B": That certain "grantor trust" (within the meaning
of
the Grantor Trust Provisions), the assets of which consist of the
Broker Strip
with respect to the Broker Strip Loans and amounts held from time
to time in the
Collection Account that represent the Broker Strip.
"Grantor Trust B Assets": The segregated pool of assets comprising
Grantor Trust B.
"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 comprising
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 comprising
Grantor Trust Z.
"Ground Lease": With respect to any Mortgage Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged
Property or space
lease within such Mortgaged Property, the lease agreement creating
such
leasehold interest.
"Group 1 Mortgage Loan": Any Trust Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Trust Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants,
chemicals, wastes, or substances, including, without limitation,
those so
identified pursuant to CERCLA or any other federal, state or local
environmental
related laws and regulations now existing or hereafter enacted, and
specifically
including, without limitation, asbestos and asbestos-containing
materials,
polychlorinated biphenyls ("PCBs"), radon gas, petroleum and
petroleum products
and urea formaldehyde.
-35-
"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 REO
Property by such Person, subject to any conditions therein
specified, that is
otherwise herein contemplated to be taken by an Independent
Contractor will not
cause such REO Property to cease to qualify as "foreclosure
property" within the
meaning of Section 860G(a)(8) of the Code for purposes of Section
860D(a) of the
-36-
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,
except with respect to the Class A-2FL Certificates and the Class
A-4FL
Certificates prior to a Class A-2FL Distribution Conversion or a
Class A-4FL
Distribution Conversion, as the case may be, the calendar month
immediately
preceding the calendar month in which such Distribution Date
occurs. For
purposes of determining Class A-2FL Interest Distribution Amounts
and Class
A-2FL Floating Swap Payments or Class A-4FL Interest Distribution
Amounts and
Class A-4FL Floating Swap Payments, for any Distribution Date and
any Class
A-2FL Swap Payment Date or Class A-4FL Swap Payment Date, as the
case may be,
related thereto based upon the confirmation under the related Swap
Agreement,
the Interest Accrual Period will begin on and include the 12th day
of the month
preceding the month in which the subject Distribution Date occurs
(or, in the
case of the first Distribution Date, will begin on and include the
Closing Date)
and will end on and include the 11th day of the month in which the
subject
Distribution Date occurs; provided that, if a Class A-2FL
Distribution
Conversion or a Class A-4FL Distribution Conversion is in effect
with respect to
the subject Distribution Date, then the Interest Accrual Period
applicable to
the Class A-2FL Interest Distribution Amount or the Class A-4FL
Interest
Distribution Amount, as the case may be, for such Distribution Date
will be the
same as the Interest Accrual Period with respect to the Class A-2FL
REMIC II
Regular Interest or the Class A-4FL REMIC II Regular Interest, as
the case may
be, for such Distribution Date.
"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-CKI1,
Commercial Mortgage Pass-Through Certificates, Series 2005-CKI1".
"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
-37-
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.
"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 December 1, 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.
"KeyBank": KeyBank National Association, a national association, or
its successor in interest.
"KeyBank Mortgage Loan Purchase Agreement": That certain mortgage
loan
purchase agreement, dated as of December 1, 2005, between the
Depositor and
KeyBank and relating to the transfer of the KeyBank Mortgage Loans
to the
Depositor.
"KeyBank Mortgage Loans": Each of the Mortgage Loans transferred
and
assigned to the Depositor pursuant to the KeyBank Mortgage Loan
Purchase
Agreement.
-38-
"KRECM": KeyCorp Real Estate Capital Markets, Inc. or its successor
in
interest.
"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.
"LIBOR": The rate specified in Section 1.03(a) or the rate
calculated
by the Trustee in accordance with Section 1.03(b), as applicable
under the
circumstances.
"LIBOR Business Day": Any day on which commercial banks are open
for
general business (including dealings in foreign exchange and
foreign currency
deposits) in London, England and/or New York, New York.
"LIBOR Determination Date": For purposes of calculating LIBOR in
any
particular calendar month, the second LIBOR Business Day prior to
the
commencement of the Interest Accrual Period in such calendar month;
provided
that, to the extent that the calculation of LIBOR in accordance
with Section
1.03(b) requires a determination made as of New York City time, the
subject
LIBOR Determination Date must be a day on which commercial banks
are open for
general business (including dealings in foreign exchange and
foreign currency
deposits) in London, England and New York, New York.
"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 (or the
Controlling
Class Representative), 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 (or the Controlling Class
Representative) pursuant
to Section 9.01; (v) in the case of an A-Note Trust Mortgage Loan
or the
Glendale Galleria Trust Mortgage Loan, such Mortgage Loan is
purchased by the
related B-Noteholder (in the case of an A-Note Trust Mortgage Loan)
or by the
Glendale Galleria Pari Passu Noteholder or a Glendale Galleria
Subordinate
Noteholder (in the case of the Glendale Galleria Trust Mortgage
Loan) pursuant
to the related Loan Combination Intercreditor Agreement; (vi) such
Mortgage Loan
is purchased by a mezzanine lender pursuant to the related
mezzanine
intercreditor agreement; or (vii) such Mortgage Loan is removed
from the Trust
by the Sole Certificate Owner in connection with an exchange of all
of the
outstanding Certificates owned by the Sole Certificate Owner for
all of the
Trust Mortgage Loans and each REO Property remaining in the Trust
Fund pursuant
to Section 9.01. With respect to any REO Property (and the related
REO Loan),
any of the following events: (i) a Final Recovery Determination is
made with
-39-
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 (or
the
Controlling Class Representative) pursuant to Section 9.01; or (iv)
such REO
Property is removed from the Trust Fund by the Sole Certificate
Owner in
connection with an exchange of all of the outstanding Certificates
owned by the
Sole Certificate Owner for all of the Trust Mortgage Loans and each
REO Property
remaining in the Trust Fund pursuant to Section 9.01.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the
Special
Servicer in connection with: (i) the taking of all or a part of a
Mortgaged
Property or REO Property by exercise of the power of eminent domain
or
condemnation, subject, however, to the rights of any tenants and
ground lessors,
as the case may be, and the rights of the Mortgagor under the terms
of the
related Mortgage; (ii) the liquidation of a Mortgaged Property or
other
collateral constituting security for a defaulted Mortgage Loan,
through
trustee's sale, foreclosure sale, REO Disposition or otherwise,
exclusive of any
portion thereof required to be released to the related Mortgagor in
accordance
with applicable law and the terms and conditions of the related
Mortgage Note
and Mortgage; (iii) the realization upon any deficiency judgment
obtained
against a Mortgagor; (iv) the purchase of a Trust Defaulted
Mortgage Loan by the
Plurality Subordinate Certificateholder (or the Controlling Class
Representative), 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 (or the Controlling Class Representative)
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 Glendale Galleria Trust
Mortgage Loan by the
Glendale Galleria Pari Passu Noteholder or a Glendale Galleria
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; or (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.
"Loan Combination": An A/B Loan Combination or the Glendale
Galleria
Loan Combination, as the case may be. The term "Loan Combination"
shall include
any successor REO Loans with respect to the applicable Mortgage
Loans comprising
such Loan Combination.
"Loan Combination Custodial Account": With respect to any Loan
Combination, the separate account (which may be a sub-account of
the Collection
Account) created and maintained by the Master Servicer pursuant to
Section
3.04(h) and held on behalf of the Certificateholders and the
related Non-Trust
Noteholder, which shall be entitled substantially as follows:
"KeyCorp Real
Estate Capital Markets, 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-CKI1, Commercial Mortgage
Pass-Through
Certificates, Series 2005-CKI1, 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 Glendale
Galleria
Intercreditor Agreement) in effect
-40-
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 "J.E. Robert Company, Inc., as Special Servicer for
LaSalle Bank
National Association, as Trustee in trust for registered holders of
Merrill
Lynch Mortgage Trust 2005-CKI1, Commercial Mortgage Pass-Through
Certificates,
Series 2005-CKI1, 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(s), as
their interests
may appear, through foreclosure, acceptance of a deed-in-lieu of
foreclosure or
otherwise in accordance with applicable law in connection with the
default or
imminent default of such Loan Combination.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Trust Mortgage Loans that
are
Group 1 Mortgage Loans and any successor Trust REO Loans with
respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available
Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal
Distribution Amount
attributable to the Trust Mortgage Loans and Trust REO Loans
belonging to Loan
Group 1, taking into account adjustments in accordance with Section
1.02.
"Loan Group 2": Collectively, all of the Trust Mortgage Loans that
are
Group 2 Mortgage Loans and any successor Trust REO Loans with
respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available
Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal
Distribution Amount
attributable to the Trust Mortgage Loans and Trust REO Loans
belonging to Loan
Group 2, taking into account adjustments in accordance with Section
1.02.
"Loan-to-Value Ratio": With respect to any Trust Mortgage Loan, as
of
any date of determination, a fraction, expressed as a percentage,
the numerator
of which is (i) the then current principal amount of such Mortgage
Loan, or (ii)
in the case of the Glendale Galleria Trust Mortgage Loan, the then
aggregate
current principal amount of the Glendale Galleria Trust Mortgage
Loan and the
-41-
Glendale Galleria 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": KeyCorp Real Estate Capital Markets, 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
"Broker Strip
Rate" on the Mortgage Loan Schedule, and with respect to each
Non-Trust Loan,
or any successor REO Loan with respect thereto, the per annum rate
at which any
related Master Servicing Fee is permitted to be calculated under
the related
Loan Combination Intercreditor Agreement.
"Merrill Mortgage Loan Purchase Agreement": That certain mortgage
loan
purchase agreement, dated as of December 1, 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.
"MLMLI": Merrill Lynch Mortgage Lending, Inc. or its successor in
interest.
"MLPF&S": Merrill Lynch, Pierce, Fenner & Smith
Incorporated, a
Delaware corporation, or its successor in interest.
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If neither such Rating Agency nor any successor remains
in existence,
"Moody's" shall be deemed to refer to such other nationally
recognized
statistical rating 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":
With respect to any Trust Mortgage Loan and, in the case of any
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):
-42-
(i) (A) the original executed Mortgage Note for such Trust Mortgage
Loan,
including any power of attorney related to the execution thereof
(or a lost note
affidavit and indemnity with a copy of such Mortgage Note attached
thereto),
together with any and all intervening endorsements thereon,
endorsed on its face
or by allonge attached thereto (without recourse, representation or
warranty,
express or implied) to the order of LaSalle Bank National
Association, as
trustee for the registered holders of Merrill Lynch Mortgage Trust
2005-CKI1,
Commercial Mortgage Pass-Through Certificates, Series 2005-CKI1, 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 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-CKI1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-CKI1 (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-CKI1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-CKI1, 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-CKI1, Commercial
Mortgage Pass-Through Certificates, Series 2005-CKI1 (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-CKI1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-CKI1, 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;
-43-
(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 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-CKI1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-CKI1, 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-CKI1,
Commercial Mortgage Pass-Through Certificates, Series 2005-CKI1,
and in its
capacity as lead lender on behalf of the holder of the related
Non-Trust
Loan(s)), or in blank;
(ix) an original or a copy of any Ground Lease, guaranty or ground
lessor
estoppel;
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor
(including, in the case of a Trust Mortgage Loan that is part of a
Loan
Combination, any related Loan Combination Intercreditor Agreement)
and any
intercreditor agreement relating to mezzanine debt related to the
Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow or
reserve
agreement, any security agreement, any management agreement, any
agreed upon
procedures letter, any lockbox or cash management agreements, any
environmental
reports or any letter of credit (which letter of credit shall not
be delivered
in original form to the Trustee but rather to the Master Servicer),
in each case
relating to such Trust Mortgage Loan; and
(xii) with respect to a Trust Mortgage Loan secured by a
hospitality
property, a signed copy of any franchise agreement and/or
franchisor comfort
letter;
provided that whenever the term "Mortgage File" is used to refer to
documents
actually received by the Trustee or by a Custodian on its behalf,
such term
shall not be deemed to include such documents required to be
included therein
unless they are actually so received, and with respect to any
receipt or
certification by the Trustee or the Custodian for documents
described in clause
(vi) of this definition, shall be deemed to include only such
documents to the
extent the Trustee or Custodian has actual knowledge of their
existence.
"Mortgage Loan": Any Trust Mortgage Loan or any Non-Trust Loan. As
used herein, the term "Mortgage Loan" includes the related Mortgage
Note,
Mortgage and other security documents contained in the related
Mortgage File or
otherwise held on behalf of the Trust and/or any Non-Trust
Noteholder, as
applicable.
-44-
"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 KeyBank 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 Schedule I and in a computer readable format. Such list
shall set
forth the following information with respect to each Trust Mortgage
Loan:
(i)
the loan identification number (as specified in Annex A-1 to the
Prospectus);
(ii) the street address (including city, county, state and zip
code)
and name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Periodic Payment due on the first Due Date
following the Closing Date;
(v)
the Net Mortgage Rate as of the Cut-off Date and the original
Mortgage Rate;
(vi) the (A) original term to stated maturity, (B) remaining term
to
stated maturity and (C) Stated Maturity Date;
(vii) the original and remaining amortization term;
(viii) whether the Trust Mortgage Loan is secured by a Ground
Lease;
(ix) the Master Servicing Fee Rate;
(x)
whether such Trust Mortgage Loan is an ARD Loan and if so the
Anticipated Repayment Date and Additional Interest Rate for such
ARD Loan;
(xi) the related Mortgage Loan Seller and, if different, the
related
originator;
(xii) whether such Trust Mortgage Loan is insured by an
environmental
policy;
(xiii) whether such Trust Mortgage Loan is cross-defaulted or
cross-collateralized with any other Trust Mortgage Loan;
(xiv) whether such Trust Mortgage Loan is a Defeasance Loan;
(xv) whether the Trust Mortgage Loan is secured by a letter of
credit;
(xvi) whether payments on such Trust Mortgage Loan are made to a
lock-box;
(xvii) the amount of any Reserve Funds escrowed in respect of each
Trust Mortgage Loan;
-45-
(xviii) the number of days of any grace period permitted in respect
of
any Periodic Payment due under such Trust Mortgage Loan;
(xix) the property type of the related Mortgaged Property as
reported
in the rent roll;
(xx) the original principal balance of such Trust Mortgage Loan;
(xxi) the interest accrual basis of such Trust Mortgage Loan;
(xxii) the primary servicing fee rate, if any, for such Trust
Mortgage
Loan; and
(xxiii) the applicable Loan Group to which the Trust Mortgage Loan
belongs.
"Mortgage Loan Seller": MLMLI, Countrywide, IXIS or KeyBank.
"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
Trust REO Loans. The Non-Trust Loans shall not constitute part of
the Mortgage
Pool.
"Mortgage Rate": With respect to: (i) any Mortgage Loan on or prior
to
its Stated Maturity Date, the fixed annualized rate, not including
any
Additional Interest Rate, at which interest is scheduled (in the
absence of a
default) to accrue on such Mortgage Loan from time to time in
accordance with
the related Mortgage Note and applicable law; (ii) any Mortgage
Loan after its
Stated Maturity Date, the annualized rate described in clause (i)
above
determined without regard to the passage of such Stated Maturity
Date, but
giving effect to any modification thereof as contemplated by
Section 3.20; and
(iii) any REO Loan, the annualized rate described in clause (i) or
(ii), as
applicable, above determined as if the predecessor Mortgage Loan
had remained
outstanding.
"Mortgaged Property": The property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has not signed the related
Mortgage Note but
owns an interest in the related Mortgaged Property, which interest
has been
encumbered to secure such Mortgage Loan, and any Person that has
acquired the
related Mortgaged Property and assumed the obligations of the
original obligor
under the Mortgage Note, but excluding guarantors that do not own
the related
Mortgaged Property.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate
of all
Prepayment Interest Shortfalls incurred in connection with the
receipt of
Principal Prepayments on the Trust Mortgage Loans during the
related Collection
Period, exceeds (b) the aggregate amount deposited by the Master
Servicer in the
Collection Account for such Distribution Date pursuant to Section
3.19(a) in
connection with such Prepayment Interest Shortfalls on the Trust
Mortgage Loans.
"Net Investment Earnings": With respect to each of the Collection
Account, the Interest Reserve Account, any Servicing Account, any
Reserve
Account, any REO Account, the Distribution
-46-
Account, any Loan Combination Custodial Account, the Additional
Interest
Account, the Floating Rate 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, the Floating Rate Account and the
Gain-on-Sale
Reserve Account, for any Investment Period, the amount by which the
aggregate of
all losses, if any, incurred during such Investment Period in
connection with
the investment of funds held in such account in accordance with
Section 3.06
(other than losses of what would have otherwise constituted
interest or other
income earned on such funds), exceeds the aggregate of all interest
and other
income realized during such Investment Period on such funds.
"Net Mortgage Pass-Through Rate":
(A) With respect to any Trust Mortgage Loan (or any successor Trust
REO Loan with respect thereto) that accrues (or is deemed to
accrue)
interest on a 30/360 Basis, for any Distribution Date, an annual
rate equal
to the Net Mortgage Rate for such Trust Mortgage Loan as of the
Closing
Date (without regard to any modification, waiver or amendment of
the terms
of such Trust Mortgage Loan subsequent to the Closing Date); and
(B) With respect to any Trust Mortgage Loan (or any successor Trust
REO Loan with respect thereto) that accrues interest on an
Actual/360
Basis, for any Distribution Date, an annual rate equal to twelve
times a
fraction, expressed as a percentage:
(1)
the numerator of which fraction is, subject to adjustment as
described below in this definition, an amount of interest
equal to the product of (a) the number of days in the
calendar month preceding the month in which such
Distribution Date occurs, 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)
-47-
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 and the
applicable
Master Servicing Fee Rate; and, with respect to any Non-Trust Loan
or any
successor REO Loan with respect thereto, the related Mortgage Rate
minus the
applicable Master Servicing Fee Rate.
"Net Operating Income" or "NOI": With respect to any Mortgaged
Property, for any twelve-month period, the total operating revenues
derived from
such Mortgaged Property during such period, minus the total
operating expenses
incurred in respect of such Mortgaged Property during such period,
other than
(i) non-cash items such as depreciation, (ii) amortization, (iii)
actual capital
expenditures and (iv) debt service on the related Mortgage Loan.
"New Lease": Any lease of REO Property entered into at the
direction
of the Special Servicer, including any lease renewed, modified or
extended on
behalf of the Trustee for the benefit of the Certificateholders
and, in the case
of a Loan Combination, the related Non-Trust Noteholder(s).
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance
(including
any Workout-Delayed Reimbursement Amount that subsequently becomes
a
Nonrecoverable P&I Advance) or Nonrecoverable Servicing Advance
(including any
Workout-Delayed Reimbursement Amount that subsequently becomes a
Nonrecoverable
Servicing Advance).
"Nonrecoverable P&I Advance": Any P&I Advance previously
made or
proposed to be made, including any previously made P&I Advance
that constitutes
a Workout-Delayed Reimbursement Amount, in respect of any Trust
Mortgage Loan or
Trust REO Loan by the Master Servicer, the Trustee or 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 or the Special
Servicer) or its
good faith judgment (in the case of the Trustee or the 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
-48-
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 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
Mortgage Loan or 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 or the Special Servicer) or its good faith judgment (in
the case of the
Trustee or the 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
-49-
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 X, 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 Glendale Galleria
Subordinate Non-Trust Loan or the Glendale Galleria Pari Passu
Non-Trust Loan,
as the case may be.
"Non-Trust Noteholder": The holder of a Non-Trust Loan.
"Non-United States Securities Person": Any Person other than a
United
States Securiteis Person.
"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 any of
Grantor Trust A-2FL, Grantor Trust A-4FL, Grantor Trust Z, Grantor
Trust E or
Grantor Trust B 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
Sequential Pay Certificates, the Class A-2FL REMIC II Regular
Interest or the
Class A-4FL REMIC II Regular Interest, the initial Class Principal
Balance
thereof as of the Closing Date, in each case as specified in the
Preliminary
Statement. The Class A-2FL Certificates and the Class A-2FL REMIC
II Regular
Interest will have the same Original Class Principal Balance, the
Class A-4FL
Certificates and the Class A-4FL REMIC II Regular Interest will
have the same
original class Principal Balance.
"Original Notional Amount": $3,073,749,461, the total original
notional amount of the Class X Certificates.
"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.
-50-
"Pass-Through Rate": With respect to:
(i)
the Class A-1 Certificates for any Distribution Date, 5.0770% per
annum;
(ii) the Class A-1D Certificates for any Distribution Date, 3.8070%
per annum;
(iii) the Class A-2 Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date minus 0.021%;
(iv) the Class A-2FL REMIC II Regular Interest, for any
Distribution
Date, a per annum rate equal to the lesser of (a) 5.2100% and (b)
the Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(v)
the Class A-3 Certificates for any Distribution Date, a per annum
rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(vi) the Class A-4FL REMIC II Regular Interest, for any
Distribution
Date, a per annum rate equal to the lesser of (a) 5.2100% and (b)
the Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(vii) the Class A-5 Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(viii) the Class A-SB Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(ix) the Class A-6 Certificates for any Distribution Date, a per
annum
rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(x)
the Class A-1A Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(xi) the Class AM Certificates for any Distribution Date, a per
annum
rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(xii) the Class AJ 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 B 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 C Certificates for any Distribution Date, a per
annum
rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
-51-
(xv) 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;
(xvi) 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;
(xvii) 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;
(xviii) 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;
(xix) 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;
(xx) the Class J Certificates for any Distribution Date, a per
annum
rate equal to the lesser of (a) 4.9940% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xxi) the Class K Certificates for any Distribution Date, a per
annum
rate equal to the lesser of (a) 4.9940% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xxii) the Class L Certificates for any Distribution Date, a per
annum
rate equal to the lesser of (a) 4.9940% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xxiii) the Class M Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.9940% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xxiv) the Class N Certificates for any Distribution Date, a per
annum
rate equal to the lesser of (a) 4.9940% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xxiv) the Class P Certificates for any Distribution Date, a per
annum
rate equal to the lesser of (a) 4.9940% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xxv) the Class Q Certificates for any Distribution Date, a per
annum
rate equal to the lesser of (a) 4.9940% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xxvi) the Class X Certificates, for any Distribution Date, a rate
equal to the weighted average of the Class X Strip Rates for the
Class X Components for such Distribution Date (weighted on the
basis of the respective Component Notional Amounts of the Class X
Components outstanding immediately prior to such Distribution
Date);
-52-
(xxvii) with respect to the Class A-2FL Certificates, (A) for any
Distribution Date with respect to which a Class A-2FL
Distribution Conversion does not exist, the per annum rate,
expressed as a percentage, equal to the applicable value of LIBOR
specified in or calculated in accordance with Section 1.03, plus
0.1250% per annum, and (B) for any Distribution Date with respect
to which a Class A-2FL Distribution Conversion does exist, the
Pass-Through Rate for the Class A-2FL REMIC II Regular Interest
for that Distribution Date; and
(xxviii) with respect to the Class A-4FL Certificates, (A) for any
Distribution Date with respect to which a Class A-4FL
Distribution Conversion does not exist, the per annum rate,
expressed as a percentage, equal to the applicable value of LIBOR
specified in or calculated in accordance with Section 1.03, plus
0.2500% per annum, and (B) for any Distribution Date with respect
to which a Class A-4FL Distribution Conversion does exist, the
Pass-Through Rate for the Class A-4FL REMIC II Regular Interest
for that 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 or
any
Class A-2FL Certificate or Class A-4FL Certificate, the portion of
the relevant
Class evidenced by such Certificate, expressed as a percentage, the
numerator of
which is the Certificate Principal Balance or Certificate Notional
Amount, as
the case may be, of such Certificate as of the Closing Date, as
specified on the
face thereof, and the denominator of which is the Original Class
Principal
Balance or Original Notional Amount, as the case may be, of the
relevant Class.
With respect to a Residual Certificate or Class Z Certificate, the
percentage
interest in distributions to be made with respect to the relevant
Class, as
stated on the face of such Certificate.
"Performance Certification": As defined in Section 8.16(b).
"Performing Party": As defined in Section 8.16(b).
"Periodic Payment": With respect to any Mortgage Loan as of any Due
Date, the scheduled payment of principal and/or interest on such
Mortgage Loan
(exclusive of Additional Interest), including any Balloon Payment,
that is
actually payable by the related Mortgagor from time to time under
the terms of
the related Mortgage Note (as such terms may be changed or modified
in
connection with a bankruptcy or similar proceeding involving the
related
Mortgagor or by reason of a modification, waiver or amendment
granted or agreed
to by the Special Servicer pursuant to Section 3.20).
-53-
"Permitted Investments": Any one or more of the following
obligations
or securities (including obligations or securities of the Trustee
or one of its
Affiliates if otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or
any
agency or instrumentality thereof (having original maturities of
not more
than 365 days), provided such obligations are backed by the full
faith and
credit of the United States; such obligations must be limited to
those
instruments that have a predetermined fixed dollar amount of
principal due
at maturity that cannot vary or change. Interest may either be
fixed or
variable; if such interest is variable, interest must be tied to a
single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index. In addition, such obligations may
not have
a rating from S&P with an "r" highlighter;
(ii) repurchase agreements or obligations with respect to any
security
described in clause (i) above (having original maturities of not
more than
365 days), provided that the short-term deposit or debt
obligations, of the
party agreeing to repurchase such obligations are rated in the
highest
rating categories of each of S&P and Moody's or such lower
rating as will
not result in an Adverse Rating Event, as evidenced in writing by
the
Rating Agencies; in addition, it may not have a rating from S&P
with an "r"
highlighter and its terms must have a predetermined fixed dollar
amount of
principal due at maturity that cannot vary or change; interest may
either
be fixed or variable; if such interest is variable, interest must
be tied
to a single interest rate index plus a single fixed spread (if
any), and
move proportionately with that index;
(iii) federal funds, unsecured uncertified certificates of deposit,
time deposits, demand deposits and bankers' acceptances of any bank
or
trust company organized under the laws of the United States or any
state
thereof (having original maturities of not more than 365 days), the
short
term obligations of which are rated in the highest rating
categories of
each of S&P and Moody's or such lower rating as will not result
in an
Adverse Rating Event, as evidenced in writing by the Rating
Agencies; in
addition, it may not have a rating from S&P with an "r"
highlighter and its
terms should have a predetermined fixed dollar amount of principal
due at
maturity that cannot vary or change; interest may either be fixed
or
variable; if such interest is variable, interest must be tied to a
single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index;
(iv) commercial paper (including both non-interest bearing discount
obligations and interest-bearing obligations and having original
maturities
of not more than 365 days) of any corporation or other entity
organized
under the laws of the United States or any state thereof which is
rated in
the highest rating category of each of S&P and Moody's or such
lower rating
as will not result in an Adverse Rating Event, as evidenced in
writing by
the Rating Agencies; the commercial paper by its terms must have a
predetermined fixed dollar amount of principal due at maturity that
cannot
vary or change; in addition, it may not have a rating from S&P
with an "r"
highlighter; interest may either be fixed or variable; if such
interest is
variable, interest must be tied to a single interest rate index
plus a
single fixed spread (if any), and move proportionately with that
index;
(v) money market funds which are rated in the highest applicable
rating category of each of S&P and Moody's or such lower rating
as will not
result in an Adverse Rating Event, as
-54-
evidenced in writing by the Rating Agencies; in addition, it may
not have a
rating from S&P with an "r" highlighter and its terms must have
a
predetermined fixed dollar amount of principal due at maturity that
cannot
vary or change; and
(vi) any other obligation or security acceptable to each Rating
Agency, evidence of which acceptability shall be provided in
writing by
each Rating Agency to the Master Servicer, the Special Servicer and
the
Trustee;
provided that (1) no investment described hereunder shall evidence
either the
right to receive (x) only interest with respect to such investment
or (y) a
yield to maturity greater than 120% of the yield to maturity at par
of the
underlying obligations; and (2) no investment described hereunder
may be
purchased at a price greater than par if such investment may be
prepaid or
called at a price less than its purchase price prior to stated
maturity; and
provided, further, that to the extent any investment described
hereunder
includes funds that relate to the Glendale Galleria Pari Passu
Non-Trust Loan,
such investment shall not cause a Glendale Galleria Related MBS
Adverse Rating
Event.
"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).
"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.
"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 "J.E.
Robert Company, Inc., as Special Servicer, for LaSalle Bank
National
Association, as Trustee in trust for the registered holders of
Merrill Lynch
Mortgage Trust 2005-CKI1, Commercial Mortgage Pass-Through
Certificates, Series
2005-CKI1".
-55-
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on
the
Certificates for federal income tax purposes, (i) each Trust ARD
Loan is repaid
on its Anticipated Repayment Date, (ii) no Trust Mortgage Loan will
otherwise be
paid prior to maturity and (iii) there will be no extension of
maturity for any
Trust Mortgage Loan.
"Prepayment Interest Excess": With respect to any Mortgage Loan
that
was subject to a voluntary Principal Prepayment in full or in part
during any
Collection Period, which Principal Prepayment was applied to such
Mortgage Loan
following such Mortgage Loan's Due Date in such 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).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a voluntary Principal Prepayment in full or in
part during
any Collection Period, which Principal Prepayment was applied to
such Mortgage
Loan prior to such Mortgage Loan's Due Date in such Collection
Period, the
amount of interest, to the extent not collected from the related
Mortgagor
(without regard to any Prepayment Premium or Yield Maintenance
Charge actually
collected), that would have accrued (at a rate per annum equal to
the sum of (x)
the related Net Mortgage Rate for such Mortgage Loan and (y) the
Trustee Fee
Rate) on the amount of such Principal Prepayment during the period
commencing on
the date as of which such Principal Prepayment was applied to such
Mortgage Loan
and ending on the day immediately preceding such Due Date,
inclusive (net of any
portion of that interest that would have constituted Penalty
Interest and/or
Additional Interest, if applicable).
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield
Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in
connection with a Principal Prepayment.
"Primary Collateral": The Mortgaged Property directly securing a
Crossed Loan and excluding any property as to which the related
lien may only be
foreclosed upon by exercise of cross-collateralization provisions.
"Prime Rate": The "prime rate" published in the "Money Rates"
section
of The Wall Street Journal, as such "prime rate" may change from
time to time.
If The Wall Street Journal ceases to publish the "prime rate", then
the Master
Servicer shall select an equivalent publication that publishes such
"prime
rate"; and if such "prime rate" is no longer generally published or
is limited,
regulated or administered by a governmental or quasi-governmental
body, then the
Master Servicer shall select a comparable interest rate index. In
either case,
such selection shall be made by the Master Servicer in its sole
discretion and
the Master Servicer shall notify the Trustee and the Special
Servicer in writing
of its selection.
-56-
"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 as recoveries of principal
of the
Trust Mortgage Loans, in each case net of any portion of such
amounts that
represents a recovery of the principal portion of any Periodic
Payment
(other than a Balloon Payment) due, or of the principal portion of
any
Assumed Periodic Payment deemed due, in respect of the related
Trust
Mortgage Loan on a Due Date during or prior to the related
Collection
Period and included as part of the Principal Distribution Amount
for such
Distribution Date or any prior Distribution Date pursuant to clause
(a)
above;
(e) with respect to any REO Properties, the aggregate of the
principal
portions of all Assumed Periodic Payments deemed due in respect of
the
related Trust REO Loans for their respective Due Dates occurring
during the
related Collection Period to the extent received (in the form of
REO
Revenues or otherwise) during the related Collection Period or
advanced
with respect to such Distribution Date;
(f) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that were
received during the related Collection Period on such REO
Properties and
that were identified and applied by the Master Servicer and/or
Special
Servicer as recoveries of principal of the related Trust REO Loans,
in each
case net of any portion of such amounts that represents a recovery
of the
principal portion of any Periodic Payment (other than a Balloon
Payment)
due, or of the principal portion of any Assumed Periodic Payment
deemed
due, in respect of the related Trust REO Loan or the predecessor
Trust
Mortgage Loan on a Due Date during or prior to the related
Collection
Period and included as
-57-
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
(exclusive of the Class A-2FL Certificates and the Class A-4FL
Certificates), the Class A-2FL REMIC II Regular Interest and the
Class
A-4FL REMIC II Regular Interest 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).
Any allocation of the Principal Distribution Amount between Loan
Group
1 and Loan Group 2 for purposes of calculating the Loan Group 1
Principal
Distribution Amount and the Loan Group 2 Distribution Amount shall
take into
account Section 1.02.
"Principal Prepayment": Any payment of principal made by the
Mortgagor
on a Mortgage Loan that is received in advance of its scheduled Due
Date; and
provided that it shall not include a payment of principal that is
accompanied by
an amount of interest representing scheduled interest due on any
date or dates
in any month or months subsequent to the month of prepayment.
"Principal Recovery Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer
out of
certain related recoveries pursuant to the third paragraph of
Section 3.11(c).
"Principal Recovery Fee Rate": With respect to all amounts set
forth
in the third paragraph of Section 3.11(c), 1.0%.
"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 July 12, 2005, as supplemented
by
the Prospectus Supplement, relating to the Registered Certificates.
-58-
"Prospectus Supplement": The final prospectus supplement dated
December 1, 2005 of the Depositor relating to the registration of
the Registered
Certificates under the Securities Act.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Option Notice": As defined in Section 3.18(e).
"Purchase Price": With respect to any Trust Mortgage Loan (or Trust
REO Loan), a cash price equal to the outstanding principal balance
of such Trust
Mortgage Loan (or Trust REO Loan) as of the date of purchase,
together with (a)
all accrued and unpaid interest on such Trust Mortgage Loan (or
Trust REO Loan)
at the related Mortgage Rate (other than Additional Interest) to
but not
including the Due Date in the Collection Period of purchase, (b)
any accrued
interest on P&I Advances (other than Unliquidated Advances in
respect of prior
P&I Advances) made with respect to such Trust Mortgage Loan (or
Trust REO Loan),
(c) all related and unreimbursed (from collections on such Trust
Mortgage Loan
and, if such Trust Mortgage Loan is part of a Loan Combination, any
related
Non-Trust Loan (or Trust REO Loan and, if such Trust REO Loan is a
successor to
a Trust Mortgage Loan that is part of a Loan Combination, any
related REO Loan
that is a successor to a related Non-Trust Loan)) Servicing
Advances (together
with Unliquidated Advances) plus any accrued and unpaid interest
thereon (other
than on Unliquidated Advances), (d) any reasonable costs and
expenses,
including, but not limited to, the cost of any enforcement action
(including
reasonable legal fees), incurred by the Master Servicer, the
Special Servicer or
the Trust Fund in connection with any such purchase by a Mortgage
Loan Seller
(to the extent not included in clause (c) above) and Principal
Recovery Fees
payable (to the extent payable pursuant to Section 3.11(c)) with
respect to such
Trust Mortgage Loan (or Trust REO Loan), and (e) any other
Additional Trust Fund
Expenses in respect of such Trust Mortgage Loan (or Trust REO Loan)
(including
any Additional Trust Fund Expenses (which includes Special
Servicing Fees and
Workout Fees) previously reimbursed or paid by the Trust Fund but
not so
reimbursed by the related Mortgagor or from related Insurance
Proceeds or
Liquidation Proceeds); provided that the Purchase Price shall not
be reduced by
any outstanding P&I Advance.
"Qualified Institutional Buyer" or "QIB": A "qualified
institutional
buyer" within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the
relevant
jurisdiction (i) with a minimum claims paying ability rating of at
least "A-" by
S&P 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
S&P 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 or a Glendale
Galleria
Related MBS Adverse Rating Event.
"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
-59-
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); (xvi) have comparable prepayment
restrictions; and
(xvii) become a part of the same Loan Group as the deleted Trust
Mortgage Loan.
In the event that one or more mortgage loans are substituted for
one or more
deleted Trust Mortgage Loans, then the amounts described in clause
(i) shall be
determined on the basis of aggregate principal balances and the
rates described
in clause (ii) above (provided that the lowest Net Mortgage Rate
shall not be
lower than the highest fixed Pass-Through Rate of any Class of
Sequential Pay
Certificates outstanding) and the remaining term to stated maturity
referred to
in clause (v) above shall be determined on a weighted average
basis. When a
Qualified Substitute Mortgage Loan is substituted for a deleted
Trust Mortgage
Loan, the applicable Mortgage Loan Seller shall certify that the
proposed
Qualified Substitute Mortgage Loan meets all of the requirements of
the above
definition and shall send such certification to the Trustee.
"Rated Final Distribution Date": The Distribution Date in November
2037.
"Rating Agency": Each of Moody's and S&P.
"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
-60-
REO Property, an amount (not less than zero) equal to (a) the
unpaid principal
balance of such Mortgage Loan or REO Loan, as the case may be, as
of the
commencement of the Collection Period in which the Final Recovery
Determination
was made, plus (b) without taking into account the amount described
in subclause
(1)(d) of this definition, all accrued but unpaid interest on such
Mortgage Loan
or such REO Loan, as the case may be, at the related Mortgage Rate
to but not
including the Due Date in the Collection Period in which the Final
Recovery
Determination was made (exclusive of any portion thereof that
constitutes
Penalty Interest, Additional Interest, Prepayment Premiums or Yield
Maintenance
Charges), plus (c) any related unpaid servicing expenses, any
related Servicing
Advances (together with Unliquidated Advances in respect of prior
related
Servicing Advances) that, as of the commencement of the Collection
Period in
which the Final Recovery Determination was made, had not been
reimbursed from
the subject Mortgage Loan or REO Property, as the case may be, and
any new
related Servicing Advances made during such Collection Period,
minus (d) all
payments and proceeds, if any, received in respect of and allocable
to such
Mortgage Loan or such REO Loan, as the case may be, during the
Collection Period
in which such Final Recovery Determination was made net of any
portion of such
payments and/or proceeds that is payable or reimbursable in respect
of the
related liquidation and other servicing expenses and, in the case
of a Mortgage
Loan or 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(s) of the other Mortgage Loan(s) in that Loan Combination;
(2) each
defaulted Mortgage Loan as to which any portion of the principal or
previously
accrued interest (other than Additional Interest and Penalty
Interest) payable
thereunder or any Unliquidated Advance was canceled in connection
with a
bankruptcy or similar proceeding involving the related Mortgagor or
a
modification, waiver or amendment of such Mortgage Loan granted or
agreed to by
the Special Servicer pursuant to Section 3.20, the amount of such
principal
and/or interest or Unliquidated Advance so canceled; (3) each
Mortgage Loan as
to which the Mortgage Rate thereon has been permanently reduced and
not
recaptured for any period in connection with a bankruptcy or
similar proceeding
involving the related Mortgagor or a modification, waiver or
amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant
to Section
3.20, the amount of the consequent reduction in the interest
portion of each
successive Periodic Payment due thereon (each such Realized Loss
shall be deemed
to have been incurred on the Due Date for each affected Periodic
Payment); (4)
each Trust Mortgage Loan or Trust REO Loan as to which there were
any
Nonrecoverable Advances, the amount of any such Nonrecoverable
Advance
reimbursed (and/or interest thereon paid) from amounts that would
have otherwise
been distributable as principal on the Certificates; and (5) each
Trust Mortgage
Loan purchased from the Trust Fund at a price less than the
Purchase Price
therefor, the amount of the deficiency.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which
such
Distribution Date occurs.
"Recording/Filing Agent": As defined in Section 2.01(d).
"Recovered Amount": As defined in Section 1.02(c).
"Registered Certificate": Any Class A-1, Class A-1D, Class A-2,
Class
A-2FL, Class A-3, Class A-4FL, Class A-5, Class A-SB, Class A-6,
Class A-1A,
Class AM, Class AJ, Class B, Class C or Class D Certificate.
"Regular Certificate": Any REMIC II Certificate other than a Class
R-II Certificate.
-61-
"Regulation S": Regulation S under the Securities Act.
"Regulation S Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside of
the United
States in reliance on Regulation S, one or collectively more global
Certificates
of such Class registered in the name of the Depository or its
nominee, in
definitive, fully registered form without interest coupons, each of
which
Certificates bears a Regulation S CUSIP number.
"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, the Broker
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 (exclusive of the Excess Servicing
Strip, the
Broker Strip and all Additional Interest) held from time to time in
the
Collection Account, the Interest Reserve Account, any Pool REO
Account, the
Gain-on-Sale Reserve Account, any Loan Combination Custodial
Account and the
Distribution Account; (iii) any REO Property acquired in respect of
a Trust
Mortgage Loan; (iv) the rights of the Depositor under Sections 2,
3, 8, 9, 10,
11, 12, 13, 14, 16, 17, 19 and 20 of each of the Mortgage Loan
Purchase
Agreements with respect to the Trust Mortgage Loans; and (v) the
rights of the
mortgagee under all Insurance Policies with respect to the Trust
Mortgage Loans;
provided that REMIC I shall not include any Non-Trust Loan or any
successor REO
Loan with respect thereto or any payments or other collections of
principal,
interest, Prepayment Premiums, Yield Maintenance Charges or other
amounts
collected on a Non-Trust Loan or any successor REO Loan with
respect thereto.
"REMIC I Principal Balance": The principal amount of any REMIC I
Regular Interest outstanding as of any date of determination. As of
the Closing
Date, the initial REMIC I Principal Balance of each REMIC I Regular
Interest
shall be the amount set forth as such in the Preliminary Statement
hereto. On
each Distribution Date, the REMIC I Principal Balance of each REMIC
I Regular
Interest shall be permanently reduced by all distributions of
principal deemed
to have been made in respect of such REMIC I Regular Interest on
such
Distribution Date pursuant to Section 4.01(i), 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 the first paragraph of Section 4.04(b). The REMIC I
Principal
Balance of a REMIC I Regular Interest shall be increased, pursuant
to the second
paragraph of Section 4.04(b), in connection with increases in the
-62-
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-1D, Class A-2, Class
A-3, Class A-5, Class A-SB, Class A-6, Class A-1A, Class AM, Class
AJ, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L,
Class M, Class N, Class P, Class Q, Class X or Class R-II
Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating
to real estate mortgage investment conduits, which appear at
Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions,
and proposed, temporary and final Treasury regulations and any
published
rulings, notices and announcements promulgated thereunder, as the
foregoing may
be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": The Pool REO Account or any Loan Combination REO
Account, as applicable.
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09.
"REO Disposition": The sale or other disposition of any REO
Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan (or, if a Loan Combination is
involved,
any of the multiple 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 Loan Combination REO Property, 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
-63-
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
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 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 the Mortgage Loans
comprising a Loan
Combination become REO Loans, then 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.
"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).
-64-
"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. Section 225.64 and conducted in accordance with the
standards of the
Appraisal Institute.
"Required Appraisal Mortgage Loan": Each Trust Mortgage Loan (or,
in
the case of clause (ii) below, any successor Trust REO Loan with
respect
thereto) (i) that is 60 days or more delinquent in respect of any
Periodic
Payments, (ii) that becomes an REO Loan, (iii) that has been
modified by the
Special Servicer in a manner that affects the amount or timing of
any Periodic
Payment (other than a Balloon Payment) (except, or in addition to,
bringing
monthly Periodic Payments current 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) with respect to which any
related Balloon
payment has not been paid by its scheduled maturity date; provided
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;
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, each 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
-65-
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 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).
"Scheduled Payment": With respect to any Mortgage Loan, for any Due
Date following the Cut-off Date as of which it is outstanding, the
scheduled
Periodic Payment of principal and interest (other than Additional
Interest) on
such Mortgage Loan that is or would be, as the case may be, payable
by the
related Mortgagor on such Due Date under the terms of the related
Mortgage Note
as in effect on the Closing Date, without regard to any subsequent
change in or
modification of such terms in connection with a bankruptcy or
similar proceeding
involving the related Mortgagor or a modification, waiver or
amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant
to Section
3.20 or acceleration of principal by reason of default, and
assuming that each
prior Scheduled Payment has been made in a timely manner; provided,
however,
that if the related loan documents for a Loan Combination provide
for a single
monthly debt service payment for such Loan Combination, then the
Scheduled
Payment for each Mortgage Loan comprising such Loan Combination for
any Due Date
shall be that portion of the monthly debt service payment for such
Loan
Combination and such Due Date
-66-
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-1D, Class A-2, Class
A-2FL, Class A-3, Class A-4FL, Class A-5, Class A-SB, Class A-6,
Class A-1A or
Class X Certificate.
"Sequential Pay Certificate": Any Class A-1, Class A-1D, Class A-2,
Class A-2FL, Class A-3, Class A-4FL, Class A-5, Class A-SB, Class
A-6, Class
A-1A, Class AM, Class AJ, Class B, Class C, Class D, Class E, Class
F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class P or
Class Q
Certificate.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of
pocket" costs and expenses (including attorneys' fees and expenses
and fees of
real estate brokers) incurred by or on behalf of the Master
Servicer, the
Special Servicer, the Trustee or the Fiscal Agent in connection
with the
servicing of a Mortgage Loan, if a default is imminent thereunder
or after a
default, delinquency or other unanticipated event, or in connection
with the
administration of any REO Property, including, but not limited to,
the cost of
(a) compliance with the obligations of the Master Servicer and the
Special
Servicer, if any, set forth in Section 3.02 and 3.03, (b) (i) real
estate taxes,
assessments, penalties and other similar items, (ii) ground rents
(if
applicable), and (iii) premiums on Insurance Policies, in each
instance if and
to the extent Escrow Payments (if any) collected from the related
Mortgagor are
insufficient to pay such item when due and the related Mortgagor
has failed to
pay such item on a timely basis, (c) the preservation, insurance,
restoration,
protection and management of a Mortgaged Property, including the
cost of any
"force placed" insurance policy purchased by the Master Servicer or
the Special
Servicer to the extent such cost is allocable to a particular
Mortgaged Property
that the Master Servicer or the Special Servicer is required to
cause to be
insured pursuant to Section 3.07(a), (d) obtaining any Insurance
Proceeds or any
Liquidation Proceeds of the nature described in clauses (i)-(iii),
(v), (vii)
and (viii) of the definition of "Liquidation Proceeds," (e) any
enforcement or
judicial proceedings with respect to a Mortgaged Property,
including, without
limitation, foreclosures, (f) any Required Appraisal or other
appraisal
expressly required or permitted to be obtained hereunder, (g) the
operation,
management, maintenance and liquidation of any REO Property,
including, without
limitation, appraisals and compliance with Section 3.16(a) (to the
extent not
covered by available funds in the applicable REO Account), (h)
obtaining related
ratings confirmation (to the extent not paid by the related
Mortgagor), (i) UCC
filings (to the extent not reimbursed by the Mortgagor), (j)
compliance with the
obligations of the Master Servicer or the Trustee set forth in
Section 2.03(a)
or (b) and (k) any other expenditure expressly designated as a
Servicing Advance
under this Agreement. Notwithstanding anything to the contrary,
"Servicing
Advances" shall not include allocable overhead of the Master
Servicer or the
Special Servicer, such as costs for office space, office equipment,
supplies and
related expenses, employee salaries and related expenses and
similar internal
costs, and expenses or costs and
-67-
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 Mortgage Loan and any
successor
REO Loan with respect thereto, the Master Servicing Fee and the
Special
Servicing Fee.
"Servicing File": Any documents, certificates, opinions and reports
(other than documents required to be part of the related Mortgage
File)
delivered by the related Mortgagor in connection with, or relating
to, the
origination and servicing of any Mortgage Loan, and that are
reasonably required
for the ongoing administration of the Mortgage Loan, including
appraisals,
surveys, property inspection reports, engineering reports,
environmental
reports, financial statements, leases, rent rolls and tenant
estoppels.
"Servicing Officer": Any officer or employee of the Master Servicer
or
the Special Servicer involved in, or responsible for, the
administration and
servicing of the Mortgage Loans, whose name and specimen signature
appear on a
list of servicing officers furnished by such party to the Trustee
and the
Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing Standard": With respect to the Master Servicer or the
Special Servicer, as applicable, the servicing and administration
of the
Mortgage Loans (including any Non-Trust Loans) for which it is
responsible
hereunder (a) in the same manner in which, and with the same care,
skill,
prudence and diligence with which, the Master Servicer or the
Special Servicer,
as the case may be, generally services and administers similar
mortgage loans
(i) for other third parties, giving due consideration to customary
and usual
standards of practice of prudent institutional commercial mortgage
loan
servicers servicing mortgage loans for third parties or (ii) held
in its own
portfolio, whichever standard is higher, (b) with a view to (i) the
timely
recovery of all Scheduled Payments of principal and interest under
the Mortgage
Loans, (ii) in the case of the Special Servicer, if a Mortgage Loan
comes into
and continues in default, the maximization of the recovery on that
Mortgage Loan
to the Certificateholders or, in the case of any Loan Combination,
to the
Certificateholders and the related Non-Trust Noteholder(s) (as a
collective
whole) on a net present value basis (the relevant discounting of
anticipated
collections to be performed at the related Mortgage Rate) and (iii)
the best
interests of the Certificateholders and the Trust Fund (or, in the
case of any
Loan Combination, the Certificateholders, the Trust Fund and the
related
Non-Trust Noteholder(s), taking into account, if applicable and to
the extent
consistent with the related Loan Combination Intercreditor
Agreement and the
related Mortgage Loan documents, the subordinate nature, if
applicable, of the
related Non-Trust Loan 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
-68-
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 Mortgage Loan, the
occurrence of any of the events described in clauses (a) through
(g) of the
definition of "Specially Serviced Mortgage Loan".
"Significant Mortgage Loan": At any time of determination, any
Mortgage Loan that (1) has a principal balance of $20,000,000 or
more at the
time of determination or has, whether (a) individually, (b) as part
of a Crossed
Loan Group or (c) as part of a group of Mortgage Loans made to
affiliated
Mortgagors, a principal balance that is equal to or greater than 5%
or more of
the aggregate outstanding principal balance of the Mortgage Pool at
the time of
determination or (2) is one of the 10 largest Mortgage Loans (which
for the
purposes of this definition shall include Crossed Loan Groups and
groups of
Mortgage Loans made to affiliated Mortgagors) by outstanding
principal balance
at such time.
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of Regular Certificates, the Class A-2FL
Certificates
or the Class A-4FL Certificates, evidencing a $1,000 denomination.
"Sole Certificate Owner": As defined in Section 9.01.
"Special Servicer": J.E. Robert Company, Inc., or any successor in
interest thereto, or any successor special servicer appointed as
herein
provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and
payable to the
Special Servicer pursuant to the first paragraph of Section
3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced
Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Designated Mortgage Loan Documents": With respect to any
Trust Mortgage Loan, the following documents collectively:
(i) the original executed Mortgage Note (or, alternatively, if the
original executed Mortgage Note has been lost, a lost note
affidavit and
indemnity with a copy of such Mortgage Note attached thereto);
(ii) an original or a copy of the Mortgage (with or without
recording
information);
(iii) the original or a copy of the policy or certificate of
lender's
title insurance or, if such policy has not been issued or located,
an
original or a copy of an irrevocable, binding commitment (which may
be a
pro forma policy or a marked version of the policy that has been
executed
by an authorized representative of the title company or an
agreement to
provide the same pursuant to binding escrow instructions executed
by an
authorized representative of the title company) to issue such title
insurance policy;
-69-
(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.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which
any
of the following events have occurred:
(a) the related Mortgagor shall have failed to make when due any
Periodic Payment, including a Balloon Payment, and the failure
continues
unremedied--
(i)
except in the case of a Balloon Payment, for 60 days; or
(ii) solely in the case of a delinquent Balloon Payment, for one
day; 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)
is 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
-70-
(f) the related Mortgagor shall admit in writing its inability to
pay
its debts generally as they become due, file a petition to take
advantage
of any applicable insolvency or reorganization statute, make an
assignment
for the benefit of its creditors, or voluntarily suspend payment of
its
obligations; or
(g) the Master Servicer shall have received notice of the
commencement
of foreclosure or similar proceedings with respect to the related
Mortgaged
Property;
provided, however, that a Mortgage Loan will cease to be a
Specially Serviced
Mortgage Loan:
(i) with respect to the circumstances described in clause (a)
above,
when the related Mortgagor has made three consecutive full and
timely
Periodic Payments under the terms of such Mortgage Loan (as such
terms may
be changed or modified in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or by reason of a
modification,
waiver or amendment granted or agreed to by the Special Servicer
pursuant
to Section 3.20);
(ii) with respect to the circumstances described in clauses (b),
(d),
(e) and (f) above, when such circumstances cease to exist in the
reasonable
judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), but, with respect to any bankruptcy or
insolvency
proceedings described in clauses (d), (e) and (f), no later than
the entry
of an order or decree dismissing such proceeding;
(iii) with respect to the circumstances described in clause (c)
above,
when such default is cured; and
(iv) with respect to the circumstances described in clause (g)
above,
when such proceedings are terminated;
so long as at that time no other circumstance identified in clauses
(a) through
(g) above exists that would otherwise cause such Mortgage Loan to
continue to be
characterized as a Specially Serviced Mortgage Loan.
During any time an entire Loan Combination is serviced and
administered pursuant to this Agreement, if a Servicing Transfer
Event exists
with respect to one Mortgage Loan in such Loan Combination, it will
also be
considered to exist for the other Mortgage Loan(s) in such Loan
Combination;
provided that, if a Glendale Galleria Subordinate Noteholder
prevents the
occurrence of a Servicing Transfer Event with respect to the
Glendale Galleria
Trust Mortgage Loan through the exercise of cure rights as set
forth in the
Glendale Galleria Intercreditor Agreement, then the existence of
such Servicing
Transfer Event with respect to one or more of the Glendale Galleria
Subordinate
Non-Trust Loans shall not, in and of itself, result in the
existence of a
Servicing Transfer Event with respect to the Glendale Galleria
Trust Mortgage
Loan or cause the servicing of the Glendale Galleria Loan
Combination to be
transferred to the Special Servicer, unless a separate Servicing
Transfer Event
has occurred with respect thereto.
"Startup Day": With respect to each of REMIC I and REMIC II, the
day
designated as such in Section 10.01(c).
-71-
"State and Local Taxes": Taxes imposed by the states of New York,
Illinois, Missouri, Virginia and by any other state or local taxing
authorities
as may, by notice to the Trustee, assert jurisdiction over the
Trust Fund or any
portion thereof, or which, according to an Opinion of Counsel
addressed to the
Trustee, have such jurisdiction.
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date specified in the Mortgage Note (as in effect on the Closing
Date) on which
the last payment of principal is due and payable under the terms of
the Mortgage
Note (as in effect on the Closing Date), without regard to any
change in or
modification of such terms in connection with a bankruptcy or
similar proceeding
involving the related Mortgagor or a modification, waiver or
amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant
to Section
3.20 and, in the case of an ARD Loan, without regard to its
Anticipated
Repayment Date.
"Stated Principal Balance": With respect to any Trust Mortgage Loan
as
of any date of determination, an amount (which amount shall not be
less than
zero) equal to (x) the Cut-off Date Balance of such Trust Mortgage
Loan (or, in
the case of a Qualified Substitute Mortgage Loan that is a Trust
Mortgage Loan,
the unpaid principal balance thereof after application of all
principal payments
due on or before the related date of substitution, whether or not
received),
permanently reduced on each Distribution Date, to not less than
zero, by (y) the
sum of:
(i) all payments and other collections of principal, if any, with
respect to such Trust Mortgage Loan that are included as part of
the
Principal Distribution Amount for such Distribution Date pursuant
to
clause(s) (a), (b), (c) and/or (d) of, and without regard to the
provisos
to, the definition of "Principal Distribution Amount";
(ii) any other amount received with respect to such Trust Mortgage
Loan during the related Collection Period that is not included
among the
payments and other collections of principal described in the
immediately
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
-72-
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
(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.
The Stated Principal Balance with respect to each Glendale Galleria
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 monthly remittance date under the
Glendale Galleria
Intercreditor Agreement 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 Glendale Galleria
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, 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, 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.
-73-
"Swap Agreement": Either of the Class A-2FL Swap Agreement or the
Class A-4FL Swap Agreement.
"Swap Counterparty": Either of the Class A-2FL Swap Counterparty or
the Class A-4FL Swap Counterparty.
"Swap Default": With respect to either Swap Agreement, any failure
on
the part of the related Swap Counterparty (that continues beyond
any applicable
grace period under such Swap Agreement) to (i) make a required
payment under
such Swap Agreement as and when due thereunder, (ii) either post
acceptable
collateral or find an acceptable replacement Swap Counterparty or
find an
acceptable guarantor after a Collateralization Event (as defined in
such Swap
Agreement) has occurred, as required by Part 1(n)(1) of the
Schedule to the
Master Agreement in such Swap Agreement, or (iii) find an
acceptable replacement
Swap Counterparty after a Rating Agency Trigger Event (as defined
in such Swap
Agreement) has occurred, as required by Part 1(n)(3) of the
Schedule to the
Master Agreement in such Swap Agreement.
"Swap Payment Default": A Swap Default of the nature described in
clause (i) of the definition of "Swap Default".
"Swap Termination Fees": With respect to either Swap Agreement, any
fees, costs or expenses payable by the related Swap Counterparty to
the Trust in
connection with a Swap Default under such Swap Agreement,
termination of such
Swap Agreement or liquidation of such Swap Agreement, as specified
in such Swap
Agreement.
"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 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 A-2FL, Grantor Trust A-4FL,
Grantor Trust Z,
Grantor Trust E and Grantor Trust B 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.
"The Shoppes at Plantation A-Note Trust Mortgage Loan": The A-Note
Trust Mortgage Loan identified as loan number 60 on the Mortgage
Loan Schedule
and as being secured by retail property identified as The Shoppes
at Plantation.
"The Shoppes at Plantation B-Note Non-Trust Loan": The B-Note
Non-Trust Loan that relates to The Shoppes at Plantation A-Note
Trust Mortgage
Loan.
-74-
"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, (iii) the Grantor Trust E
Assets, (iv) the
Grantor Trust B Assets, (v) the Grantor Trust A-2FL Assets and (vi)
the Grantor
Trust A-4FL Assets.
"Trust Mortgage Loan": Each of the Mortgage Loans, including any
A-Note Trust Mortgage Loan and the Glendale Galleria 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.
"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, an amount equal to one month's
interest for
the most recently ended calendar
-75-
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": 0.0006% 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, KeyBanc
Capital
Markets, a Division of McDonald Investments Inc., IXIS Securities
North America
Inc., Morgan Stanley & Co. Incorporated and Goldman, Sachs
& Co. or in each
case, its respective successor in interest.
"United States Securities Person": Any "U.S. person" as defined in
Rule 902(k) of Regulation S.
"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 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.
-76-
"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, the Class A-2FL Certificates
and the Class
A-4FL Certificates. Ninety-eight percent (98%) of the Voting Rights
shall be
allocated among the Class A-1, Class A-1D, Class A-2, Class A-2FL,
Class A-3,
Class A-4FL, Class A-5, Class A-SB, Class A-6, Class A-1A, Class
AM, Class AJ,
Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K,
Class L, Class M, Class N, Class P 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. 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).
"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
-77-
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 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 in the Loan Group that includes the Trust Mortgage Loan or
Trust REO
Loan in respect of which such Nonrecoverable Advance was made or in
respect
of which such Workout-Delayed Reimbursement Amount is outstanding,
and
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, 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 or Trust REO
Loans in
the Loan Group that does not include the Trust
-78-
Mortgage Loan or Trust REO Loan in respect of which such
Nonrecoverable
Advance was made or in respect of which such Workout-Delayed
Reimbursement
Amount is outstanding, and 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;
third, 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 in the Loan Group that
includes the
Trust Mortgage Loan or Trust REO Loan in respect of which such
Nonrecoverable Advance was made, and 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;
fourth, 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 in the Loan Group that does
not
include the Trust Mortgage Loan or Trust REO Loan in respect of
which such
Nonrecoverable Advance was made, and 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
fifth, 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 or second of Section
1.02(a) to
reimburse a Nonrecoverable Advance (or to pay interest thereon) or
to reimburse
a Workout-Delayed Reimbursement Amount, then:
(i) 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; and
(ii) depending on whether such payment or other collection of
principal relates to Loan Group 1 or Loan Group 2, there shall be a
corresponding reduction in the Loan Group 1 Principal Distribution
Amount
or the Loan Group 2 Principal Distribution Amount, as applicable,
for the
related Distribution Date.
(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
-79-
payments or other collections of principal received on the Mortgage
Pool (with a
corresponding reduction to the Principal Distribution Amount, and
to either or
both of the Loan Group 1 Principal Distribution Amount and the Loan
Group 2
Principal Distribution Amount, for the relevant Distribution Date),
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):
(i) 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; and
(ii) the Loan Group 1 Principal Distribution Amount and/or the
Loan Group 2 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 Loan Group 1
Principal Distribution Amount and/or the Loan Group 2 Principal
Distribution Amount, as applicable, 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;
provided that, if both the Loan Group 1 Principal Distribution
Amount and the
Loan Group 2 Principal Distribution Amount for a prior Distribution
Date were
reduced pursuant to Section 1.02(b) above as a result of 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, and if the subject Recovered Amount is not sufficient
to cover the
full amount of such reductions, then such Recovered Amount shall be
applied to
increase the Loan Group 1 Principal Distribution Amount and the
Loan Group 2
Principal Distribution Amount in accordance with, and to the extent
permitted
by, clause (ii) of this Section 1.02(c) in reverse order of the
application of
payments and other collections of principal on the respective Loan
Groups in
accordance with Section 1.02(a) to reimburse the subject
Nonrecoverable Advance
(and/or pay interest thereon) or to reimburse the subject
Workout-Delayed
Reimbursement Amount, as the case may be.
(d) For purposes of making the adjustments to the Principal
Distribution Amount, the Loan Group 1 Principal Distribution Amount
or the Loan
Group 2 Principal Distribution Amount, for any Distribution Date,
as
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
-80-
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.
SECTION 1.03. Calculation of LIBOR.
(a) The initial value of LIBOR shall be 4.33125% per annum. Such
value
of LIBOR shall be utilized in calculating: (i) with respect to the
Class A-2FL
Certificates, (A) the Class A-2FL Floating Swap Payment to be made
on the Class
A-2FL Swap Payment Date in January 2006 and (B) the Pass-Through
Rate with
respect to the Class A-2FL Certificates for the Distribution Date
in January
2006, and (ii) with respect to the Class A-4FL Certificates, (A)
the Class A-4FL
Floating Swap Payment to be made on the Class A-4FL Swap Payment
Date in January
2006 and (B) the Pass-Through Rate with respect to the Class A-4FL
Certificates
for the Distribution Date in January 2006.
(b) The value of LIBOR applicable to the calculation of the Class
A-2FL Floating Swap Payment to be made on the Class A-2FL Swap
Payment Date and
the Class A-4FL Floating Swap Payment to be made on the Class A-4FL
Swap Payment
Date in any particular calendar month subsequent to January 2006,
as well as the
calculation of the respective Pass-Through Rates with respect to
the Class A-2FL
Certificates and the Class A-4FL Certificates for the Distribution
Date in such
calendar month (provided that no Class A-2FL Distribution
Conversion or Class
A-4FL Distribution Conversion, as applicable, is then in effect),
shall be
determined by the Trustee (and promptly reported to the related
Swap
Counterparty) on the LIBOR Determination Date in the preceding
calendar month in
accordance with the following methodology: LIBOR shall equal the
rate for
deposits in U.S. Dollars, for a period equal to one month, which
appears on the
Dow Jones Market Service (formerly Telerate) Page 3750 as of 11:00
a.m., London
time, on the applicable LIBOR Determination Date. If that rate does
not appear
on the Dow Jones Market Service Page 3750, LIBOR will be determined
on the basis
of the rates at which deposits in U.S. Dollars are offered by any
five major
reference banks in the London interbank market selected by the
Trustee to
provide that bank's offered quotation of such rates at
approximately 11:00 a.m.,
London time, on the applicable LIBOR Determination Date to prime
banks in the
London interbank market for a period of one month, commencing on
the 12th day of
the calendar month in which the applicable LIBOR Determination Date
occurs and
in an amount that is representative for a single such transaction
in the
relevant market at the relevant time. The Trustee shall request the
principal
London office of any five major reference banks in the London
interbank market
selected by the Trustee to provide a quotation of those rates, as
offered by
each such bank. If at least two such quotations are provided, LIBOR
will be the
arithmetic mean of the quotations. If fewer than two quotations are
provided as
requested, LIBOR will be the arithmetic mean of the rates quoted by
major banks
in New York City selected by the Trustee, at approximately 11:00
a.m., New York
City time, on the applicable LIBOR Determination Date for loans in
U.S. Dollars
to leading European banks for a period equal to one month,
commencing on the
applicable LIBOR Determination Date and in an amount that is
representative for
a single such transaction in the relevant market at the relevant
time. The
determination of LIBOR by the Trustee will be binding absent
manifest error.
-81-
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-CKI1"
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 and
(iv) 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
related "A Note
Holder" under each Loan Combination Intercreditor Agreement that
relates to an
A/B Loan Combination and the obligations of the "Lead Lender" under
the Glendale
Galleria Intercreditor Agreement; provided that the Master Servicer
shall, as
further set forth in Article III, perform the servicing obligations
and exercise
the related rights of the related "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 "Lead
Lender" under
the Glendale Galleria 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 Trust Mortgage Loan, any
of the
documents and/or instruments referred to in clauses (ii), (iii),
(vi) (if
recorded) and (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
-82-
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, 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 Trust Mortgage Loan, any of the documents and/or instruments
referred to in
clauses (ii), (iii), (vi) (if recorded) and (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 (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 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 (iv)
or (v) of the
definition of "Mortgage File" (in the case of clause (iv) solely
because of a
delay caused by the recording office where such document or
instrument has been
delivered for recordation), the applicable Mortgage Loan Seller may
provisionally satisfy the delivery requirements of the related
Mortgage Loan
Purchase Agreement and Section 2.01(b) by delivering with respect
to such Trust
Mortgage Loan on the Closing Date an omnibus assignment of such
Trust Mortgage
Loan; provided that all required original assignments with respect
to such Trust
Mortgage Loan in fully complete and recordable form shall be
delivered to the
Trustee or its Custodian within 120 days of the Closing Date (or
within such
longer period, not to exceed 18 months, as the Trustee in its
reasonable
discretion may permit so long as the applicable Mortgage Loan
Seller is, as
certified in writing to the Trustee no less often than every 90
days, attempting
in good faith to obtain from the appropriate county recorder's
office such
original or photocopy).
(d) The Trustee shall, for a fee paid to the Trustee by IXIS on the
Closing Date as to each Trust Mortgage Loan that is an IXIS Trust
Mortgage Loan,
promptly (and in any event within 90 days following the later of
the Closing
Date or the delivery of each assignment and UCC Financing Statement
to the
Trustee) cause to be submitted for recording or filing, as the case
may be, in
the appropriate public office for real property records or UCC
Financing
Statements, as appropriate and to the extent timely delivered to
the Trustee in
final, recordable form, each such assignment of Mortgage, each such
assignment
of Assignment of Leases and, to the extent the Trustee has actual
knowledge that
such documents are to be recorded, any other recordable documents
relating to
each such Trust Mortgage Loan, in favor of the Trustee referred to
in clause
(iv) of the definition of "Mortgage File" and each such UCC
Financing Statement
assignment in favor of the Trustee and so delivered to the Trustee
-83-
and referred to in clause (viii) of the definition of "Mortgage
File." Each such
assignment and UCC Financing Statement assignment shall reflect
that the
recorded original should be returned by the public recording office
to the
Trustee or its designee following recording, and each such
assignment and UCC
Financing Statement assignment shall reflect that the file copy
thereof should
be returned to the Trustee or its designee following filing;
provided, that in
those instances where the public recording office retains the
original
assignment of Mortgage or assignment of Assignment of Leases, the
Trustee shall
obtain therefrom a certified copy of the recorded original, at the
expense of
IXIS. If any such document or instrument is lost or returned
unrecorded or
unfiled, as the case may be, because of a defect therein, the
Trustee shall
direct IXIS, pursuant to the applicable Mortgage Loan Purchase
Agreement, to
promptly prepare or cause to be prepared a substitute therefor or
cure such
defect, as the case may be, and thereafter the Trustee shall, upon
receipt
thereof, cause the same to be duly recorded or filed, as
appropriate. Upon
request, the Trustee shall forward to the Master Servicer a copy of
each of the
aforementioned recorded assignments following the Trustee's receipt
thereof, to
the extent not previously provided.
The Depositor hereby represents and warrants that with respect to
the
Merrill Trust Mortgage Loans, Countrywide Trust Mortgage Loans and
KeyBank Trust
Mortgage Loans, the related Mortgage Loan Seller has covenanted in
the related
Mortgage Loan Purchase Agreement that it shall retain or cause to
be retained,
an Independent Person (such Person, the "Recording/Filing Agent")
that shall, as
to each such Trust Mortgage Loan, promptly (and in any event within
90 days
following the later of the Closing Date or the delivery of each
assignment and
UCC Financing Statement to the Recording/Filing Agent) cause to be
submitted,
for recording or filing, as the case may be, in the appropriate
public office
for real property records or UCC Financing Statements, each such
assignment of
Mortgage, each such assignment of Assignment of Leases and any
other recordable
documents relating to each such Trust Mortgage Loan in favor of the
Trustee that
is referred to in clause (iv) of the definition of "Mortgage File"
and each such
UCC Financing Statement assignment in favor of the Trustee that is
referred to
in clause (viii) of the definition of "Mortgage File," in each case
pursuant to
Section 2(d) of the related Mortgage Loan Purchase Agreement.
(e) All documents and records in the Servicing File (except draft
documents, privileged communications, credit underwriting or due
diligence
analyses, credit committee briefs or memoranda or other internal
approval
documents or data or internal worksheets, memoranda, communications
or
evaluations of the Mortgage Loan Seller) in possession of the
Depositor or the
Mortgage Loan Sellers that relate to the Trust Mortgage Loans and
that are not
required to be a part of a Mortgage File in accordance with the
definition
thereof (including any original letter of credit that is not part
of the
Mortgage File because the Master Servicer or any Sub-Servicer
therefor has
possession thereof), together with all Escrow Payments and Reserve
Accounts in
the possession thereof, shall be delivered to the Master Servicer
or such other
Person as may be directed by the Master Servicer (at the expense of
the
applicable Mortgage Loan Seller) on or before the Closing Date and
shall be held
by the Master Servicer on behalf of the Trustee in trust for the
benefit of the
Certificateholders; provided, however, the Master Servicer shall
have no
responsibility for holding documents created or maintained by the
Special
Servicer hereunder and not delivered to the Master Servicer. The
applicable
Mortgage Loan Seller shall pay any costs of assignment or amendment
of any
letter of credit related to the Trust Mortgage Loans such Mortgage
Loan Seller
sold to the Depositor required in order for the Master Servicer to
draw on such
letter of credit.
-84-
(f) In connection with the Depositor's assignment pursuant to
Section
2.01(a) above, the Depositor shall deliver to the Custodian, the
Master Servicer
and the Special Servicer on or before the Closing Date and hereby
represents and
warrants that it has delivered a copy of a fully executed
counterpart of each of
the Mortgage Loan Purchase Agreements, as in full force and effect
on the
Closing Date.
(g) The Depositor hereby consents to the filing of any UCC
Financing
Statements contemplated by this Agreement without its consent.
SECTION 2.02. Acceptance of the Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
acknowledges receipt of the Depositor's assignment to it of the
Depositor's
right, title and interest in the assets that constitute the Trust
Fund, and
further acknowledges receipt by it or a Custodian on its behalf,
subject to the
provisos in the definition of "Mortgage File" and the provisions of
Section 2.01
and subject to the further limitations on review provided for in
Section 2.02(b)
and the exceptions noted on the schedule of exceptions of (i) the
Mortgage File
delivered to it for each Trust Mortgage Loan and (ii) a copy of a
fully executed
counterpart of each Swap Agreement and each Mortgage Loan Purchase
Agreement,
all in good faith and without notice of any adverse claim, and
declares that it
or a Custodian on its behalf holds and will hold such documents and
the other
documents received by it that constitute portions of the Mortgage
Files, and
that it holds and will hold the Trust Mortgage Loans and other
assets included
in the Trust Fund, in trust for the exclusive use and benefit of
all present and
future Certificateholders. To the extent that the Mortgage File for
a Trust
Mortgage Loan that is part of a Loan Combination relates to the
corresponding
Non-Trust Loan, the Trustee shall also hold such Mortgage File in
trust for the
use and benefit of the related Non-Trust Noteholder(s). The Trustee
hereby
certifies to each of the Depositor, the Master Servicer, the
Special Servicer
and each Mortgage Loan Seller that, without regard to the proviso
in the
definition of "Mortgage File", each of the Specially Designated
Mortgage Loan
Documents are in its possession. In addition, within 90 days after
the Closing
Date, the Trustee or the Custodian on its behalf will review the
Mortgage Files
and certify (in a certificate substantially in the form of Exhibit
C) to each of
the Depositor, the Master Servicer, the Special Servicer, each
Mortgage Loan
Seller (with copies to the Controlling Class Representative), that,
with respect
to each Trust Mortgage Loan listed in the Mortgage Loan Schedule,
except as
specifically identified in the schedule of exceptions annexed
thereto, (i)
without regard to the proviso in the definition of "Mortgage File,"
all
documents specified in clauses (i), (ii), (iv)(A), (v) and (vii),
and to the
extent provided in the related Mortgage File and actually known by
a Responsible
Officer of the Trustee or the Custodian to be required or to the
extent listed
on the Mortgage Loan checklist, if any, provided by the related
Mortgage Loan
Seller pursuant to the related Mortgage Loan Purchase Agreement,
clauses (iii),
(iv)(B), (iv)(C), (vi), (viii) through (xii) of the definition of
"Mortgage
File" are in its possession, (ii) all documents delivered or caused
to be
delivered with respect to a Trust Mortgage Loan by the applicable
Mortgage Loan
Seller constituting the related Mortgage File have been reviewed by
it and
appear regular on their face, appear to be executed and appear to
relate to such
Trust Mortgage Loan, and (iii) based on such examination and only
as to the
foregoing documents, the information set forth in the Mortgage Loan
Schedule for
such Trust Mortgage Loan with respect to the items specified in
clauses (v) and
(vi)(c) of the definition of "Mortgage Loan Schedule" is correct.
Further, with
respect to the documents described in clause (viii) of the
definition of
Mortgage File, absent actual knowledge of a Responsible Officer to
the contrary
or copies of UCC Financing Statements delivered to the Trustee as
part of the
Mortgage File indicating otherwise, the Trustee may assume, for
purposes of the
certification delivered in this Section
-85-
2.02(a), that the related Mortgage File should include one state
level UCC
Financing Statement filing and one local UCC Financing Statement
fixture filing
for each Mortgaged Property (or with respect to any Mortgage Loan
that has two
or more Mortgagors, for each Mortgagor). Amendments with respect to
the UCC
Financing Statements to be assigned to the Trust, assigning such
UCC Financing
Statements to the Trust, will be delivered on the new national
forms and in
recordable form and will be filed in the state of incorporation or
organization
of the related Mortgagor as so indicated on the documents provided.
If any
exceptions are noted to the certification delivered to the
above-mentioned
recipients substantially in the form of Exhibit C, the Trustee
shall, every 90
days after the delivery of such certification until the second
anniversary of
the Closing Date, and every 180 days thereafter until the fifth
anniversary of
the Closing Date, and thereafter upon request by any party hereto,
any Mortgage
Loan Seller or the Plurality Subordinate Certificateholder,
distribute an
updated exception report to such recipients; provided that, by
delivery of each
such updated exception report, the Trustee shall be deemed to have
made the
certifications provided for in Exhibit C as to each Mortgage Loan
or each
applicable document (that is to be covered by a certification in
the form of
Exhibit C) in respect of a Mortgage Loan that, in each case, is not
identified
in such updated exception report.
(b) None of the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer or any Custodian is under any duty or obligation
to inspect,
review or examine any of the documents, instruments, certificates
or other
papers relating to the Trust Mortgage Loans delivered to it to
determine that
the same are valid, legal, effective, genuine, enforceable, in
recordable form,
sufficient or appropriate for the represented purpose or that they
are other
than what they purport to be on their face.
SECTION 2.03. Mortgage Loan Seller's Repurchase or Substitution of
Trust Mortgage Loans for Document Defects and Breaches of
Representations and Warranties.
(a) If any party hereto discovers (without implying any duty of
such
Person to make any inquiry) or receives notice that any document or
documents
constituting a part of a Mortgage File with respect to a Trust
Mortgage Loan has
not been properly executed, is missing (beyond the time period
required for its
delivery hereunder), contains information that does not conform in
any material
respect with the corresponding information set forth in the
Mortgage Loan
Schedule, or does not appear to be regular on its face (each, a
"Document
Defect"), or discovers (without implying any duty of such Person to
make any
inquiry) or receives notice of a breach of any representation or
warranty
relating to any Trust Mortgage Loan set forth in Schedule I of any
Mortgage Loan
Purchase Agreement (a "Breach"), the party discovering such
Document Defect or
Breach shall give written notice (which notice, in respect of any
obligation of
the Trustee to provide notice of a Document Defect, shall be deemed
given by the
delivery of the certificate as required by Section 2.02(a)) to the
applicable
Mortgage Loan Seller and the other parties hereto. The Trustee
shall then
promptly deliver such notice to the Controlling Class
Representative and to the
Rating Agencies of such Document Defect or Breach. Promptly upon
becoming aware
of any Document Defect or Breach (including through such written
notice provided
by any party hereto or the Controlling Class Representative as
provided above),
if any party hereto determines that such Document Defect or Breach
materially
and adversely affects the value of the affected Trust Mortgage Loan
or the
interests of the Certificateholders therein, such party shall
notify the Master
Servicer and, if the subject Trust Mortgage Loan is a Specially
Serviced
Mortgage Loan, the Special Servicer, of such determination and
promptly after
receipt of such notice, the Master Servicer or the Special
Servicer, as
applicable, shall request in writing that the applicable Mortgage
Loan Seller,
not later than 90 days from receipt of such written request (or, in
the case of
a Document
-86-
Defect or Breach relating to a Trust Mortgage Loan not being a
"qualified
mortgage" within the meaning of the REMIC Provisions, not later
than 90 days
after any party to this Agreement discovers such Document Defect or
Breach) (i)
cure such Document Defect or Breach, as the case may be, in
accordance with
Section 3(c) of the related Mortgage Loan Purchase Agreement, (ii)
repurchase
the affected Trust Mortgage Loan (which for purposes of this clause
(ii) shall
include a Trust REO Loan) in accordance with Section 3(c) of the
related
Mortgage Loan Purchase Agreement, or (iii) within two years of the
Closing Date,
substitute a Qualified Substitute Mortgage Loan for such affected
Trust Mortgage
Loan (which for purposes of this clause (iii) shall include a Trust
REO Loan)
and pay the Master Servicer for deposit into the Collection Account
any
Substitution Shortfall Amount in connection therewith in accordance
with
Sections 3(c) and 3(d) of the related Mortgage Loan Purchase
Agreement;
provided, however, that if such Document Defect or Breach is
capable of being
cured but not within such 90 day period, such Document Defect or
Breach does not
relate to the Trust Mortgage Loan not being treated as a "qualified
mortgage"
within the meaning of the REMIC Provisions, and the applicable
Mortgage Loan
Seller has commenced and is diligently proceeding with the cure of
such Document
Defect or Breach within such 90 day period, the applicable Mortgage
Loan Seller
shall have an additional 90 days to complete such cure (or, failing
such cure,
to repurchase or (subject to clause (iii) above) replace the
related Trust
Mortgage Loan (which for purposes of such repurchase or
substitution shall
include a Trust REO Loan)); and provided, further, with respect to
such
additional 90 day period the applicable Mortgage Loan Seller shall
have
delivered an Officer's Certificate to the Trustee setting forth the
reasons such
Document Defect or Breach is not capable of being cured within the
initial 90
day period and what actions the applicable Mortgage Loan Seller is
pursuing in
connection with the cure thereof and stating that the applicable
Mortgage Loan
Seller anticipates such Document Defect or Breach will be cured
within the
additional 90 day period; and provided, further, that no Document
Defect (other
than with respect to a Specially Designated Mortgage Loan Document)
shall be
considered to materially and adversely affect the interests of the
Certificateholders or the value of the related Trust Mortgage Loan
unless the
document with respect to which the Document Defect exists is
required in
connection with an imminent enforcement of the mortgagee's rights
or remedies
under the related Trust Mortgage Loan, defending any claim asserted
by any
Mortgagor or third party with respect to the Trust Mortgage Loan,
establishing
the validity or priority of any lien on any collateral securing the
Trust
Mortgage Loan or for any immediate servicing obligations. In the
event of a
Document Defect or Breach as to a Trust Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other
Trust Mortgage
Loans (each a "Crossed Loan" and, collectively, a "Crossed Loan
Group"), and
such Document Defect or Breach does not constitute a Document
Defect or Breach,
as the case may be, as to any other Crossed Loan in such Crossed
Loan Group
(without regard to this paragraph) and is not cured as provided for
above, then
the applicable Document Defect or Breach, as the case may be, shall
be deemed to
constitute a Document Defect or Breach, as the case may be, as to
any other
Crossed Loan in the Crossed Loan Group for purposes of this
paragraph and the
related Mortgage Loan Seller shall be required to repurchase or
substitute for
all such Crossed Loans unless (1) the weighted average Debt Service
Coverage
Ratio for all the remaining related Crossed Loans for the four
calendar quarters
immediately preceding such repurchase or substitution is not less
than the
greater of (A) the weighted average Debt Service Coverage Ratio for
all such
Crossed Loans, including the affected Crossed Loan, for the four
calendar
quarters immediately preceding such repurchase or substitution and
(B) the
weighted average Debt Service Coverage Ratio for all such Crossed
Loans,
including the affected Crossed Loan, as of the Cut-off Date, and
(2) the
weighted average Loan to-Value Ratio for the remaining related
Crossed Loans,
determined at the time of repurchase or substitution, based upon an
Appraisal
obtained by the Special Servicer at the expense of the related
Mortgage Loan
Seller shall not
-87-
be greater than the lesser of (A) the weighted average
Loan-to-Value Ratio for
all such Crossed Loans, including the affected Crossed Loan
determined at the
time of repurchase or substitution, based upon an Appraisal
obtained by the
Special Servicer at the expense of the related Mortgage Loan Seller
and (B) the
weighted average Loan-to-Value Ratio for all such Crossed Loans,
including the
affected Crossed Loan, as of the Cut-off Date; provided that if
such criteria is
satisfied and any Crossed Loan is not so repurchased or
substituted, then such
Crossed Loan shall be released from its cross-collateralization and
cross
default provision so long as such Crossed Loan (that is not the
Crossed Loan
directly affected by the subject Document Defect or Breach) is held
in the Trust
Fund; provided, further, that the repurchase or replacement of less
than all
such Crossed Loans and the release from the cross-collateralization
and
cross-default provision shall be subject to the delivery by the
Mortgage Loan
Seller to the Trustee, at the expense of the Mortgage Loan Seller,
of an Opinion
of Counsel to the effect that such release would not cause either
of REMIC I or
REMIC II to fail to qualify as a REMIC under the Code or result in
the
imposition of any tax on "prohibited transactions" or
"contributions" after the
Startup Day under the REMIC Provisions. In the event that one or
more of such
other Crossed Loans satisfy the aforementioned criteria, the
related Mortgage
Loan Seller may elect either to repurchase or substitute for only
the affected
Crossed Loan as to which the related Document Defect or Breach
exists or to
repurchase or substitute for all of the Crossed Loans in the
related Crossed
Loan Group. All documentation relating to the termination of the
cross-collateralization provisions of each Crossed Loan being
repurchased or
replaced is to be prepared at the expense of the applicable
Mortgage Loan Seller
and, where required, with the consent of the applicable Mortgagor.
For a period
of two years from the Closing Date, so long as there remains any
Mortgage File
as to which there is any uncured Document Defect and so long as the
applicable
Mortgage Loan Seller shall provide the Officer's Certificate
pursuant to Section
3(c) of the related Mortgage Loan Purchase Agreement, the Trustee
shall on a
quarterly basis prepare and deliver electronically to the other
parties an
updated exception report as to the status of such uncured Document
Defects as
provided in Section 2.02(a). If the affected Trust Mortgage Loan is
to be
repurchased or substituted, the Master Servicer shall designate the
Collection
Account as the account to which funds in the amount of the Purchase
Price or the
Substitution Shortfall Amount, as applicable, are to be wired. Any
such
repurchase or substitution of a Trust Mortgage Loan shall be on a
whole loan,
servicing released basis.
Pursuant to each Mortgage Loan Purchase Agreement, to the extent
that
the related Mortgage Loan Seller is required to repurchase or
substitute for a
Crossed Loan thereunder while the Trustee continues to hold any
other Crossed
Loan(s) in the related Crossed Loan Group, the related Mortgage
Loan Seller and
the Depositor have agreed that neither such party shall enforce any
remedies
against the other party's Primary Collateral, but each is permitted
to exercise
remedies against the Primary Collateral securing the Crossed
Loan(s) held
thereby, so long as such exercise does not materially impair the
ability of the
other party to exercise its remedies against the Primary Collateral
securing the
Crossed Loan(s) held thereby. Notwithstanding the foregoing, each
Mortgage Loan
Seller and the Depositor have agreed that if the exercise by one
party would
materially impair the ability of the other party to exercise its
remedies with
respect to the Primary Collateral securing the Crossed Loan(s) held
by such
party, then each such party shall forbear from exercising such
remedies until
the Mortgage Loan documents evidencing and securing the relevant
Crossed Loans
can be modified in a manner consistent with the related Mortgage
Loan Purchase
Agreement to remove the threat of material impairment as a result
of the
exercise of remedies.
(b) In connection with any repurchase or substitution of one or
more
Trust Mortgage Loans contemplated by this Section 2.03, upon
receipt of a
Request for Release (in the form of Exhibit
-88-
D-1 attached hereto) of a Servicing Officer of the Master Servicer
certifying as
to the receipt of the applicable Purchase Price(s) in the
Collection Account (in
the case of any such repurchase) or the receipt of the applicable
Substitution
Shortfall Amount(s) in the Collection Account and upon the delivery
of the
Mortgage File(s) and the Servicing File(s) for the related
Qualified Substitute
Mortgage Loan(s) to the Custodian and the Master Servicer,
respectively (in the
case of any such substitution), (i) the Trustee shall execute and
deliver such
endorsements and assignments as are provided to it, in each case
without
recourse, representation or warranty, as shall be necessary to vest
in the
applicable Mortgage Loan Seller the legal and beneficial ownership
of each
repurchased Trust Mortgage Loan or deleted Trust Mortgage Loan, as
applicable,
being released pursuant to this Section 2.03, (ii) the Trustee, the
Custodian,
the Master Servicer, and the Special Servicer shall each tender to
the
applicable Mortgage Loan Seller, upon delivery to each of them of a
receipt
executed by the applicable Mortgage Loan Seller, all portions of
the Mortgage
File and other documents pertaining to each such Mortgage Loan
possessed by it
and (iii) the Master Servicer and the Special Servicer shall
release to the
applicable Mortgage Loan Seller any Escrow Payments and Reserve
Funds held by it
in respect of such repurchased or deleted Trust Mortgage Loan;
provided that
such tender by the Trustee or the Custodian shall be conditioned
upon its
receipt from the Master Servicer or the Special Servicer of a
Request for
Release. Thereafter, the Trustee, the Fiscal Agent, the Custodian,
the Master
Servicer and the Special Servicer shall have no further
responsibility with
regard to the related repurchased Trust Mortgage Loan(s) or deleted
Trust
Mortgage Loan(s), as applicable, and the related Mortgage File(s)
and Servicing
File(s). The Master Servicer shall, and is hereby authorized and
empowered by
the Trustee to, prepare, execute and deliver in its own name, on
behalf of the
Certificateholders and the Trustee or any of them, the endorsements
and
assignments contemplated by this Section 2.03, and the Trustee
shall execute any
powers of attorney that are prepared and delivered to the Trustee
by the Master
Servicer to permit the Master Servicer to do so. The Master
Servicer shall
indemnify the Trustee for any reasonable costs, fees, liabilities
and expenses
incurred by the Trustee in connection with the negligent or willful
misuse by
the Master Servicer of such powers of attorney. At the time a
substitution is
made, the applicable Mortgage Loan Purchase Agreement will provide
that the
applicable Mortgage Loan Seller shall be required to deliver the
related
Mortgage File to the Trustee and certify that the substitute Trust
Mortgage Loan
is a Qualified Substitute Mortgage Loan.
(c) No substitution of a Qualified Substitute Mortgage Loan or
Loans
may be made in any calendar month after the Determination Date for
such month.
Periodic Payments due with respect to any Qualified Substitute
Mortgage Loan
after the related date of substitution shall be part of REMIC I, as
applicable.
No substitution of a Qualified Substitute Mortgage Loan for a
deleted Trust
Mortgage Loan shall be permitted under this Agreement if after such
substitution, the aggregate of the Stated Principal Balances of all
Qualified
Substitute Mortgage Loans which have been substituted for deleted
Trust Mortgage
Loans exceeds 10% of the aggregate Cut-off Date Balance of all the
Trust
Mortgage Loans. Periodic Payments due with respect to any Qualified
Substitute
Mortgage Loan on or prior to the related date of substitution shall
not be part
of the Trust Fund or REMIC I and will (to the extent received by
the Master
Servicer) be remitted by the Master Servicer to the applicable
Mortgage Loan
Seller promptly following receipt.
(d) The Mortgage Loan Purchase Agreements and Section 2.03(a) of
this
Agreement provide the sole remedies available to the
Certificateholders, or the
Trustee on behalf of the Certificateholders, respecting any
Document Defect or
Breach with respect to the Trust Mortgage Loans purchased by the
Depositor
thereunder.
-89-
(e) The Trustee with the cooperation of the Special Servicer (in
the
case of Specially Serviced Mortgage Loans) shall, for the benefit
of the
Certificateholders, enforce the obligations of each Mortgage Loan
Seller under
Section 3 of the related Mortgage Loan Purchase Agreement.
