EXECUTION VERSION
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Depositor
and
MIDLAND LOAN SERVICES, INC.
Master Servicer and Special Servicer
and
WELLS FARGO BANK, N.A.
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2005
----------
$1,737,922,951 (approximate)
Commercial Mortgage Pass-Through Certificates
Series 2005-MCP1
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS....................................................
6
SECTION 1.01.
Defined Terms...........................................
6
SECTION 1.02.
Certain Adjustments to the Principal Distributions on
the Certificates.....................................
78
ARTICLE II CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF
CERTIFICATES.........................
82
SECTION 2.01.
Conveyance of Trust Mortgage Loans......................
82
SECTION 2.02.
Acceptance of the Trust Fund by Trustee.................
84
SECTION 2.03.
Mortgage Loan Seller's Repurchase or Substitution of
Trust Mortgage Loans for Document Defects and
Breaches of Representations and Warranties...........
86
SECTION 2.04.
Representations and Warranties of Depositor.............
90
SECTION 2.05.
Acceptance of REMIC I by Trustee........................
91
SECTION 2.06.
Execution, Authentication and Delivery of Class R-I
Certificates.........................................
91
SECTION 2.07.
Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee..................................
91
SECTION 2.08.
Execution, Authentication and Delivery of REMIC II
Certificates.........................................
92
SECTION 2.09.
Execution, Authentication and Delivery of Class Z
Certificates.........................................
92
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST
FUND...............
93
SECTION 3.01.
Administration of the Mortgage Loans....................
93
SECTION 3.02.
Collection of Mortgage Loan Payments....................
95
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 and Loan Combination
Custodial Accounts...................................
103
SECTION 3.05.
Permitted Withdrawals From the Collection Account, the
Interest Reserve Account, the Additional Interest
Account, the Distribution Account and the Loan
Combination Custodial Accounts.......................
109
SECTION 3.06.
Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Collection Account, the
Distribution Account, the Loan Combination Custodial
Accounts, the Additional Interest Account, the
Gain-on-Sale Reserve Account and the REO Accounts....
119
SECTION 3.07.
Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage................................
121
SECTION 3.08.
Enforcement of Alienation Clauses.......................
125
SECTION 3.09.
Realization Upon Defaulted Mortgage Loans; Required
Appraisals...........................................
128
SECTION 3.10.
Trustee and Custodian to Cooperate; Release of Mortgage
Files................................................
132
SECTION 3.11.
Servicing Compensation..................................
134
SECTION 3.12.
Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports..............
139
SECTION 3.13.
Annual Statement as to Compliance.......................
143
SECTION 3.14.
Reports by Independent Public Accountants...............
144
SECTION 3.15.
Access to Certain Information...........................
144
SECTION 3.16.
Title to REO Property; REO Accounts.....................
148
SECTION 3.17.
Management of REO Property..............................
150
SECTION 3.18.
Resolution of Defaulted Mortgage Loans and REO
Properties...........................................
153
SECTION 3.19.
Additional Obligations of Master Servicer...............
159
SECTION 3.20.
Modifications, Waivers, Amendments and Consents.........
160
SECTION 3.21.
Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.....................
166
SECTION 3.22.
Sub-Servicing Agreements................................
170
SECTION 3.23.
Representations and Warranties of Master Servicer and
Special Servicer.....................................
172
SECTION 3.24.
Sub-Servicing Agreement Representation and Warranty.....
175
SECTION 3.25.
Designation of Controlling Class Representative.........
175
SECTION 3.26.
Application of Default Charges..........................
177
SECTION 3.27.
Controlling Class Representative Contact with Servicer..
178
SECTION 3.28.
Certain Matters Regarding the Loan Combinations.........
178
ARTICLE IV PAYMENTS TO
CERTIFICATEHOLDERS................................
180
SECTION 4.01.
Distributions...........................................
180
SECTION 4.02.
Statements to Certificateholders........................
192
SECTION 4.03.
P&I Advances; Reimbursement of P&I Advances and
Servicing Advances...................................
196
SECTION 4.04.
Allocation of Realized Losses and Additional Trust Fund
Expenses.............................................
201
SECTION 4.05.
Calculations............................................
203
SECTION 4.06.
Use of Agents...........................................
203
ARTICLE V THE
CERTIFICATES...............................................
204
SECTION 5.01.
The Certificates........................................
204
SECTION 5.02.
Registration of Transfer and Exchange of Certificates...
204
SECTION 5.03.
Book-Entry Certificates.................................
211
SECTION 5.04.
Mutilated, Destroyed, Lost or Stolen Certificates.......
212
SECTION 5.05.
Persons Deemed Owners...................................
213
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND
THE CONTROLLING CLASS
REPRESENTATIVE..................................
214
SECTION 6.01.
Liability of Depositor, Master Servicer and Special
Servicer.............................................
214
SECTION 6.02.
Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer..................
214
SECTION 6.03.
Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and Others............
214
SECTION 6.04.
Resignation of Master Servicer and the Special
Servicer.............................................
217
SECTION 6.05.
Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer....................
218
SECTION 6.06.
Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee...............................
219
SECTION 6.07.
Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.................................
219
SECTION 6.08.
Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer.....................................
219
SECTION 6.09.
Designation of Special Servicer by the Controlling
Class; Termination of Special Servicer With Respect
to Westchester Trust Mortgage Loan...................
219
SECTION 6.10.
Master Servicer or Special Servicer as Owner of a
Certificate..........................................
222
SECTION 6.11.
The Controlling Class Representative....................
222
SECTION 6.12.
Certain Matters with Respect to the Westchester Loan
Combination..........................................
225
ARTICLE VII
DEFAULT......................................................
229
SECTION 7.01.
Events of Default.......................................
229
SECTION 7.02.
Trustee to Act; Appointment of Successor................
234
SECTION 7.03.
Notification to Certificateholders......................
235
SECTION 7.04.
Waiver of Events of Default.............................
235
SECTION 7.05.
Additional Remedies of Trustee Upon Event of Default....
235
ARTICLE VIII CONCERNING THE
TRUSTEE......................................
237
SECTION 8.01.
Duties of Trustee.......................................
237
SECTION 8.02.
Certain Matters Affecting Trustee.......................
238
SECTION 8.03.
Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans........
239
SECTION 8.04.
Trustee and Fiscal Agent May Own Certificates...........
240
SECTION 8.05.
Fees and Expenses of Trustee; Indemnification of Trustee
240
SECTION 8.06.
Eligibility Requirements for Trustee....................
241
SECTION 8.07.
Resignation and Removal of Trustee......................
241
SECTION 8.08.
Successor Trustee.......................................
242
SECTION 8.09.
Merger or Consolidation of Trustee......................
243
SECTION 8.10.
Appointment of Co-Trustee or Separate Trustee...........
243
SECTION 8.11.
Appointment of Custodians...............................
244
SECTION 8.12.
Appointment of Authenticating Agents....................
245
SECTION 8.13.
Access to Certain Information...........................
246
SECTION 8.14.
Appointment of REMIC Administrators.....................
246
SECTION 8.15.
Representations, Warranties and Covenants of Trustee....
247
SECTION 8.16.
Reports to the Securities and Exchange Commission.......
248
SECTION 8.17.
Maintenance of Mortgage File............................
253
SECTION 8.18.
Appointment of Fiscal Agent.............................
253
ARTICLE IX
TERMINATION...................................................
255
SECTION 9.01.
Termination Upon Repurchase or Liquidation of All Trust
Mortgage Loans.......................................
255
SECTION 9.02.
Additional Termination Requirements.....................
258
ARTICLE X ADDITIONAL TAX
PROVISIONS......................................
259
SECTION 10.01.
REMIC Administration....................................
259
SECTION 10.02.
Grantor Trust Administration............................
262
ARTICLE XI MISCELLANEOUS
PROVISIONS......................................
265
SECTION 11.01.
Amendment...............................................
265
SECTION 11.02.
Recordation of Agreement; Counterparts..................
267
SECTION 11.03.
Limitation on Rights of Certificateholders..............
267
SECTION 11.04.
Governing Law...........................................
268
SECTION 11.05.
Notices.................................................
268
SECTION 11.06.
Severability of Provisions..............................
269
SECTION 11.07.
Grant of a Security Interest............................
270
SECTION 11.08.
Streit Act..............................................
270
SECTION 11.09.
Successors and Assigns; Beneficiaries...................
270
SECTION 11.10.
Article and Section Headings............................
270
SECTION 11.11.
Notices to Rating Agencies..............................
271
SECTION 11.12.
Complete Agreement......................................
272
EXHIBITS
Exhibit No.
Exhibit Description
-----------
-------------------
A-1
Form of Class A-1, A-2, A-3, A-SB, A-4 and A-1A Certificates
A-2
Form of Class XP Certificate
A-3
Form of Class XC Certificate
A-4
Form of Class AM, AJ, B, C and D Certificates
A-5
Form of Class E, F, G and H Certificates
A-6
Form of Class J, K, L, M, N, P and Q Certificates
A-7
Form of Class R-I and R-II Certificates
A-8
Form of Class Z Certificate
B
Mortgage Loan Schedule
C
Form of Custodial Certification
D-1
Form of Master Servicer Request for Release
D-2
Form of Special Servicer Request for Release
E-1
Form of Transferor Certificate for Transfers of Definitive
Non-Registered Certificates (Pursuant to Section 5.02(c))
E-2A
Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates (Pursuant to Section 5.02(c))
E-2B
Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates (Pursuant to Section 5.02(c))
E-2C
Form of Transferee Certificate for Transfers of Interests in Rule
144A Global Certificates (Pursuant to Section 5.02(c))
F-1
Form I of Transferee Certificate Regarding ERISA Matters
(Definitive Non-Registered Certificates) (Pursuant to Section
5.02(c))
F-2
Form II of Transferee Certificate Regarding ERISA Matters
(Book-Entry Non-Registered Certificates) (Pursuant to Section
5.02(c))
G-1
Form of Transfer Affidavit and Agreement Regarding Residual
Certificates (Pursuant to Section 5.02(d)(i)(4))
G-2
Form of Transferor Certificate for Transfers of Residual
Certificates (Pursuant to Section 5.02(d)(i)(4))
H-1
Form of Notice and Acknowledgment (Regarding Proposed Special
Servicer)
H-2
Form of Acknowledgment of Proposed Special Servicer
I-1
Form of Information Request from Certificateholder or Certificate
Owner
I-2
Form of Information Request from Prospective Investor
J
List of Mortgage Loans with Secured Creditor Impaired Property
Environmental Insurance Policies
K
Form of S&P Defeasance Certification
L
Class XP Reference Rate Schedule
M-1
Form of Purchase Option Notice
M-2
Form of Purchase Option Assignment by the Special Servicer
M-3
Form of Purchase Option Assignment by Plurality Subordinate
Certificateholder
N
Form of Distribution Date Statement
O
Form of Sarbanes-Oxley Certification by the Depositor
P-1
Form of Certification to be Provided by the Master Servicer to the
Depositor
P-2
Form of Certification to be Provided by the Trustee to the
Depositor
P-3
Form of Certification to be Provided by the Special Servicer to
the Depositor
Q
[RESERVED]
R
List of Sub-Servicing Agreements In Effect on the Closing Date
S
Class A-SB Planned Principal Balance
T
List of Mortgage Loans Requiring Operations and Maintenance Plans
POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement is dated and effective as of
June
1, 2005, among MERRILL LYNCH MORTGAGE INVESTORS, INC., as
Depositor, MIDLAND
LOAN SERVICES, INC., as Master Servicer and as Special Servicer,
and WELLS FARGO
BANK, N.A., as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates,
to
be issued hereunder in multiple classes, which in the aggregate
will evidence
the entire beneficial ownership interest in a trust fund to be
created
hereunder, the primary assets of which will be the Trust Mortgage
Loans.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the Trust Mortgage Loans
(exclusive of the
Excess Servicing Strip and that portion of the interest payments on
the Trust
Mortgage Loans that constitutes Additional Interest) and certain
other related
assets subject to this Agreement as a REMIC for federal income tax
purposes, and
such segregated pool of assets will be designated as "REMIC I". The
Class R-I
Certificates will evidence the sole class of "residual interests"
in REMIC I for
purposes of the REMIC Provisions under federal income tax law. For
federal
income tax purposes, each REMIC I Regular Interest will be
designated as a
separate "regular interest" in REMIC I for purposes of the REMIC
Provisions
under federal income tax law. None of the REMIC I Regular Interests
will be
certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the REMIC I Regular Interests
as a REMIC for
federal income tax purposes, and such segregated pool of assets
will be
designated as "REMIC II". The Class R-II Certificates will evidence
the sole
class of "residual interests" in REMIC II for purposes of the REMIC
Provisions
under federal income tax law. For federal income tax purposes, each
Class of the
Regular Certificates (or, in the case of a Class of Class X
Certificates, each
Component thereof) will be designated as a separate "regular
interest" in REMIC
II for purposes of the REMIC Provisions under federal income tax
law.
The following table sets forth: (i) the class designation of each
Class of Sequential Pay Certificates; (ii) the Original Class
Principal Balance
for each Class of Sequential Pay Certificates; (iii) the
corresponding REMIC I
Regular Interest or REMIC I Regular Interests (each, a
"Corresponding REMIC I
Regular Interest") for each Class of Sequential Pay Certificates;
and (iv) the
initial REMIC I Principal Balance of each Corresponding REMIC I
Regular
Interest.
----------------------------------------------------------------------------
Class of
Corresponding
Sequential Pay
Original Class
REMIC I
Initial REMIC I
Certificates
Principal Balance
Regular Interest(s)
Principal Balance
----------------------------------------------------------------------------
Class A-1
$ 67,693,000
LA-1-1
$ 3,982,000
----------------------------------------------------------------------------
LA-1-2
$ 5,335,000
----------------------------------------------------------------------------
LA-1-3
$31,725,000
----------------------------------------------------------------------------
LA-1-4
$26,651,000
----------------------------------------------------------------------------
Class A-2
$346,500,000
LA-2-1
$ 9,690,000
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Class of
Corresponding
Sequential Pay
Original Class
REMIC I
Initial REMIC I
Certificates
Principal Balance
Regular Interest(s)
Principal Balance
----------------------------------------------------------------------------
LA-2-2
$ 36,124,000
----------------------------------------------------------------------------
LA-2-3
$ 35,474,000
----------------------------------------------------------------------------
LA-2-4
$ 34,527,000
----------------------------------------------------------------------------
LA-2-5
$ 33,892,000
----------------------------------------------------------------------------
LA-2-6
$188,826,000
----------------------------------------------------------------------------
LA-2-7
$
7,967,000
----------------------------------------------------------------------------
Class A-3
$ 47,661,000
LA-3-1
$ 47,661,000
----------------------------------------------------------------------------
Class A-SB
$100,000,000
LA-SB-1
$ 87,654,000
----------------------------------------------------------------------------
LA-SB-2
$ 12,346,000
----------------------------------------------------------------------------
Class A-4
$526,039,000
LA-4-1
$ 14,571,000
----------------------------------------------------------------------------
LA-4-2
$ 25,824,000
----------------------------------------------------------------------------
LA-4-3
$ 24,738,000
----------------------------------------------------------------------------
LA-4-4
$ 56,508,000
----------------------------------------------------------------------------
LA-4-5
$ 22,522,000
----------------------------------------------------------------------------
LA-4-6
$ 25,019,000
----------------------------------------------------------------------------
LA-4-7
$356,857,000
----------------------------------------------------------------------------
Class A-1A
$128,700,000
LA-1A-1
$
351,000
----------------------------------------------------------------------------
LA-1A-2
$
460,000
----------------------------------------------------------------------------
LA-1A-3
$
2,595,000
----------------------------------------------------------------------------
LA-1A-4
$
2,987,000
----------------------------------------------------------------------------
LA-1A-5
$
2,953,000
----------------------------------------------------------------------------
LA-1A-6
$
2,926,000
----------------------------------------------------------------------------
-2-
----------------------------------------------------------------------------
Class of
Corresponding
Sequential Pay
Original Class
REMIC I
Initial REMIC I
Certificates
Principal Balance
Regular Interest(s)
Principal Balance
----------------------------------------------------------------------------
LA-1A-7
$
2,968,000
----------------------------------------------------------------------------
LA-1A-8
$
2,928,000
----------------------------------------------------------------------------
LA-1A-9
$
2,798,000
----------------------------------------------------------------------------
LA-1A-10
$
2,762,000
----------------------------------------------------------------------------
LA-1A-11
$
2,640,000
----------------------------------------------------------------------------
LA-1A-12
$
2,607,000
----------------------------------------------------------------------------
LA-1A-13
$
2,493,000
----------------------------------------------------------------------------
LA-1A-14
$
6,980,000
----------------------------------------------------------------------------
LA-1A-15
$
2,240,000
----------------------------------------------------------------------------
LA-1A-16
$
2,194,000
----------------------------------------------------------------------------
LA-1A-17
$ 85,818,000
----------------------------------------------------------------------------
Class AM
$173,800,000
LAM
$173,800,000
----------------------------------------------------------------------------
Class AJ
$115,142,000
LAJ
$115,142,000
----------------------------------------------------------------------------
Class B
$ 36,932,000
LB
$ 36,932,000
----------------------------------------------------------------------------
Class C
$ 15,208,000
LC-1
$
572,000
----------------------------------------------------------------------------
LC-2
$
8,773,000
----------------------------------------------------------------------------
LC-3
$
5,863,000
----------------------------------------------------------------------------
Class D
$ 32,587,000
LD-1
$
3,721,000
----------------------------------------------------------------------------
LD-2
$ 10,332,000
----------------------------------------------------------------------------
LD-3
$
9,914,000
----------------------------------------------------------------------------
LD-4
$
8,620,000
----------------------------------------------------------------------------
Class E
$ 19,553,000
LE-1
$
942,000
----------------------------------------------------------------------------
-3-
----------------------------------------------------------------------------
Class of
Corresponding
Sequential Pay
Original Class
REMIC I
Initial REMIC I
Certificates
Principal Balance
Regular Interest(s)
Principal Balance
----------------------------------------------------------------------------
LE-2
$11,589,000
----------------------------------------------------------------------------
LE-3
$ 7,022,000
----------------------------------------------------------------------------
Class F
$28,242,000
LF-1
$14,652,000
----------------------------------------------------------------------------
LF-2
$13,590,000
----------------------------------------------------------------------------
Class G
$17,380,000
LG-1
$ 1,292,000
----------------------------------------------------------------------------
LG-2
$15,647,000
----------------------------------------------------------------------------
LG-3
$
441,000
----------------------------------------------------------------------------
Class H
$21,725,000
LH-1
$ 6,803,000
----------------------------------------------------------------------------
LH-2
$14,922,000
----------------------------------------------------------------------------
Class J
$ 6,518,000
LJ
$ 6,518,000
----------------------------------------------------------------------------
Class K
$ 8,690,000
LK-1
$ 5,218,000
----------------------------------------------------------------------------
LK-2
$ 3,472,000
----------------------------------------------------------------------------
Class L
$ 6,517,000
LL
$ 6,517,000
----------------------------------------------------------------------------
Class M
$ 4,345,000
LM
$ 4,345,000
----------------------------------------------------------------------------
Class N
$ 4,345,000
LN
$ 4,345,000
----------------------------------------------------------------------------
Class P
$ 8,690,000
LP
$ 8,690,000
----------------------------------------------------------------------------
Class Q
$21,725,951
LQ
$21,725,951
----------------------------------------------------------------------------
The Non-Trust Loans (which term includes each B-Note Non-Trust
Loan,
each Westchester Subordinate Non-Trust Loan and the Westchester
Pari Passu
Non-Trust Loan) are not part of the Trust Fund, but each is secured
by the same
Mortgage on the same Mortgaged Property that also secures the
related Trust
Mortgage Loan (which is either an A-Note Trust Mortgage Loan (in
the case of a
B-Note Non-Trust Loan) or the Westchester Trust Mortgage Loan (in
the case of a
Westchester Subordinate Non-Trust Loan or the Westchester Pari
Passu Non-Trust
Loan) and is part of the Trust Fund). As and to the extent provided
in the
related Loan Combination Intercreditor Agreement, each B-Note
Non-Trust Loan is
generally subordinate to the related A-Note Trust Mortgage Loan. As
and to the
extent provided in the related Loan Combination Intercreditor
Agreement, the
Westchester Subordinate Non-Trust Loans are generally subordinate
to, and the
Westchester Pari Passu Non-Trust
-4-
Loan is pari passu in right of payment and in other respects with,
the
Westchester Trust Mortgage Loan. As and to the extent provided
herein and in the
related Loan Combination Intercreditor Agreement, the Non-Trust
Loans will be
serviced and administered in accordance with this Agreement.
Amounts
attributable to the Non-Trust Loans shall not be assets of the
Trust Fund, and
shall be owned by the related Non-Trust Noteholders.
The portion of the Trust Fund consisting of (i) the Additional
Interest and the Additional Interest Account and (ii) amounts held
from time to
time in the Collection Account and/or the Additional Interest
Account that
represent Additional Interest shall be treated as a grantor trust
for federal
income tax purposes, and such grantor trust will be designated as
"Grantor Trust
Z". In addition, the portions of the Trust Fund consisting of (i)
the Excess
Servicing Strip and (ii) amounts held from time to time in the
Collection
Account that represent the Excess Servicing Strip shall be treated
as a grantor
trust for federal income tax purposes, and such grantor trust will
be designated
as "Grantor Trust E". As provided herein, the Trustee shall take
all actions
reasonably necessary to ensure that each of the respective portions
of the Trust
Fund consisting of Grantor Trust Z and Grantor Trust E,
respectively, maintains
its status as a "grantor trust" under federal income tax law and is
not treated
as part of REMIC I or REMIC II.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the
Trustee agree as
follows:
-5-
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context
otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": The accrual of interest calculated on the basis of
a
360-day year consisting of twelve 30-day months.
"844 Front Street A-Note Trust Mortgage Loan": The A-Note Trust
Mortgage Loan identified as loan number 32 on the Mortgage Loan
Schedule and as
being secured by retail property located at 844 Front Street.
"844 Front Street B-Note Non-Trust Loan": The B-Note Non-Trust Loan
that relates to the 844 Front Street A-Note Trust Mortgage Loan.
"A-Note Trust Mortgage Loan": Each of the Trust Mortgage Loans as
to
which the related Mortgage, which encumbers the related Mortgaged
Property, also
secures a Non-Trust Loan, which Non-Trust Loan will not be included
in the Trust
Fund. The A-Note Trust Mortgage Loans in the Trust are the 844
Front Street
A-Note Trust Mortgage Loans, the Hilton Garden Inn - Boca Raton
A-Note Trust
Mortgage Loan, the Hilton Garden Inn - Fairfax A-Note Trust
Mortgage Loan, the
Hilton Garden Inn - Miramar A-Note Trust Mortgage Loan and Prium
Office
Portfolio II A-Note Trust Mortgage Loan.
"A/B Loan Combination": Collectively, each A-Note Trust Mortgage
Loan
and the related B-Note Non-Trust Loan.
"Acceptable Insurance Default": With respect to any Mortgage Loan,
any
default under the related Mortgage Loan documents resulting from:
(i) the
exclusion of acts of terrorism from coverage under the related "all
risk"
casualty insurance policy maintained on the related Mortgaged
Property and (ii)
the related Mortgagor's failure to obtain insurance that
specifically covers
acts of terrorism, but, in each case, only if the Special Servicer
has
determined, in its reasonable judgment (exercised in accordance
with the
Servicing Standard), that (a) such insurance is not available at
commercially
reasonable rates and the subject hazards are not commonly insured
against by
prudent owners of similar real properties in similar locales (but
only by
reference to such insurance that has been obtained by such owners
at current
market rates) or (b) such insurance is not available at any rate.
Subject to the
Servicing Standard, in making any of the determinations required in
subclause
(a) or (b) of this definition, the Special Servicer shall be
entitled to rely on
the opinion of an insurance consultant.
"Accrued Certificate Interest": With respect to any Class of
Sequential Pay Certificates for any Distribution Date, one month's
interest at
the Pass-Through Rate applicable to such Class of Certificates for
such
Distribution Date, accrued on the related Class Principal Balance
outstanding
immediately prior to such Distribution Date; with respect to the
Class XC
Certificates for any Distribution Date, the aggregate of all
Accrued Component
Interest with respect to the Class XC
-6-
Components for such Distribution Date; and, with respect to the
Class XP
Certificates for any Distribution Date, the aggregate of all
Accrued Component
Interest with respect to the Class XP Components for such
Distribution Date.
Accrued Certificate Interest shall be calculated on a 30/360 Basis
and, with
respect to any Class of Regular Certificates for any Distribution
Date, shall be
deemed to accrue during the calendar month preceding the month in
which such
Distribution Date occurs.
"Accrued Component Interest": With respect to each Class XC
Component
and Class XP Component for any Distribution Date, one month's
interest at the
Class XC Strip Rate (in the case of a Class XC Component) or Class
XP Strip Rate
(in the case of a Class XP Component), as applicable, with respect
to such
Component for such Distribution Date, accrued on the Component
Notional Amount
of such Component outstanding immediately prior to such
Distribution Date.
Accrued Component Interest shall be calculated on a 30/360 Basis
and, with
respect to any Class XC Component or Class XP Component for any
Distribution
Date, shall be deemed to accrue during the calendar month preceding
the month in
which such Distribution Date occurs.
"Actual/360 Basis": The accrual of interest calculated on the basis
of
the actual number of days elapsed during any calendar month (or
other applicable
accrual period) in a year assumed to consist of 360 days.
"Actual/360 Mortgage Loan": Each Mortgage Loan that accrues
interest
on an Actual/360 Basis.
"Additional Exclusions": Exclusions in addition to those in the
insurance policies for the Mortgaged Properties on September 11,
2001.
"Additional Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal
balance of
such ARD Loan at the Additional Interest Rate (the payment of which
interest
shall, under the terms of such Mortgage Loan, be deferred until the
entire
outstanding principal balance of such ARD Loan has been paid),
together with all
interest, if any, accrued at the related Mortgage Rate plus the
related
Additional Interest Rate on such deferred interest. For purposes of
this
Agreement, Additional Interest on an ARD Loan or any successor REO
Loan with
respect thereto shall be deemed not to constitute principal or any
portion
thereof and shall not be added to the unpaid principal balance or
Stated
Principal Balance of such ARD Loan or successor REO Loan,
notwithstanding that
the terms of the related Mortgage Loan documents so permit. To the
extent that
any Additional Interest is not paid on a current basis, it shall be
deemed to be
deferred interest.
"Additional Interest Account": The segregated account or accounts
(which may be a sub-account of the Distribution Account) created
and maintained
by the Trustee pursuant to Section 3.04(d) which shall be entitled
"Wells Fargo
Bank, N.A. as Trustee, in trust for the registered holders of
Merrill Lynch
Mortgage Trust 2005-MCP1, Commercial Mortgage Pass-Through
Certificates, Series
2005-MCP1, Additional Interest Account". The Additional Interest
Account shall
not be an asset of either REMIC I or REMIC II.
"Additional Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the per
annum rate at
which such Mortgage Loan accrues interest after the Anticipated
Repayment Date
(in the absence of defaults) as calculated and as set forth in the
related
Mortgage Loan documents.
-7-
"Additional Trust Fund Expense": Any Special Servicing Fees,
Workout
Fees, Principal Recovery Fees and, in accordance with Sections
3.03(d) and
4.03(d), interest payable to the Master Servicer, the Special
Servicer, the
Trustee and any Fiscal Agent on Advances (to the extent not offset
by Default
Charges or amounts otherwise payable to any related Non-Trust
Noteholder as
provided herein) and amounts payable to the Special Servicer in
connection with
inspections of Mortgaged Properties required pursuant to the first
sentence of
Section 3.12(a) (and not otherwise paid from Default Charges or
amounts
otherwise payable to any related Non-Trust Noteholder as provided
herein), as
well as (without duplication) any of the expenses of the Trust Fund
that may be
withdrawn (x) pursuant to any of clauses (vii)(B), (ix), (xi),
(xii), (xiii),
(xv) and (xix) of Section 3.05(a) out of collections on the related
Trust
Mortgage Loans or REO Properties or out of general collections on
the Trust
Mortgage Loans and any REO Properties on deposit in the Collection
Account as
indicated in such clauses of Section 3.05(a), (y) pursuant to any
of clauses
(ix), (xi), (xii), (xiii) and (xvi) of Section 3.05(e) out of
collections on any
Loan Combination or any related Loan Combination REO Property on
deposit in the
related Loan Combination Custodial Account as indicated in such
clauses of
Section 3.05(e) (but only to the extent that such collections would
have
otherwise been transferred to the Collection Account with respect
to the related
Trust Mortgage Loan or any successor Trust REO Loan with respect
thereto), or
(z) pursuant to clause (ii) or any of clauses (iv) through (vi) of
Section
3.05(b) out of general collections on the Trust Mortgage Loans and
any REO
Properties on deposit in the Distribution Account; provided that
for purposes of
the allocations contemplated by Section 4.04 no such expense shall
be deemed to
have been incurred by the Trust Fund until such time as the payment
thereof is
actually made from the Collection Account, the related Loan
Combination
Custodial Account or the Distribution Account, as the case may be.
"Additional Yield and Prepayment Amount": With respect to any
Distribution Date and any Class of Sequential Pay Certificates
(other than any
Excluded Class) entitled to distributions of principal pursuant to
Section
4.01(a) on such Distribution Date, provided that a Yield
Maintenance Charge
and/or Prepayment Premium was actually collected during the related
Collection
Period on a Trust Mortgage Loan or a Trust REO Loan (for purposes
of this
definition, the "Prepaid Loan") in the Loan Group from which such
Class of
Certificates is receiving payments of principal on such
Distribution Date, the
product of (a) such Yield Maintenance Charge and/or Prepayment
Premium, net of
Workout Fees and Principal Recovery Fees payable therefrom and net
of any
portion of such Yield Maintenance Charges and/or Prepayment
Premiums applied
pursuant to Section 4.01(j) to reimburse one or more Classes of
Sequential Pay
Certificates in respect of Realized Losses and/or Additional Trust
Fund Expenses
previously allocated to such Class(es), multiplied by (b) a
fraction, which in
no event will be greater than one, the numerator of which is equal
to the
positive excess, if any, of (i) the Pass-Through Rate for the
subject Class of
Sequential Pay Certificates over (ii) the related Discount Rate,
and the
denominator of which is equal to the positive excess, if any, of
(i) the
Mortgage Rate for the Prepaid Loan over (ii) the related Discount
Rate,
multiplied by (c) a fraction, the numerator of which is equal to
the amount of
principal distributable on the subject Class of Sequential Pay
Certificates on
such Distribution Date (or, for so long as the Class A-4 and Class
A-1A
Certificates are outstanding, principal distributable on the
subject Class of
Sequential Pay Certificates on that Distribution Date from
collections on the
applicable Loan Group that includes the Prepaid Loan), pursuant to
Section
4.01(a), and the denominator of which is equal to the Principal
Distribution
Amount (or, so long as the Class A-4 and Class A-1A Certificates
are
outstanding, the Loan Group 1 Principal Distribution Amount or the
Loan Group 2
Principal Distribution Amount, as applicable, based on which Loan
Group includes
the Prepaid Loan) for such Distribution Date.
-8-
"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 any Fiscal Agent
may
conclusively rely on any Appraisal obtained in accordance with this
Agreement.
"Appraisal Reduction Amount": With respect to any Required
Appraisal
Mortgage Loan, the excess, if any, of: (a) an amount, as calculated
by the
Master Servicer, based on information provided by the Special
Servicer and in
consultation with the Controlling Class Representative (or, in the
case of the
Westchester Loan Combination, the Westchester Controlling Party),
as of the
first Determination Date immediately succeeding the date on which
the Master
Servicer obtains knowledge of the subject Mortgage Loan becoming a
Required
Appraisal Mortgage Loan, if no new Required Appraisal (or letter
update or
internal valuation) is required, or otherwise the date on which a
Required
Appraisal (or letter update or internal valuation, if applicable)
is obtained,
and each anniversary of such Determination Date thereafter so long
as the
subject Mortgage Loan (or, if applicable, the Westchester Loan
Combination)
remains a Required Appraisal Mortgage Loan, equal to the sum
(without
duplication) of (i) the Stated Principal Balance of such Required
Appraisal
Mortgage Loan, (ii) to the extent not previously advanced by or on
behalf of the
Master Servicer, the Trustee or any Fiscal Agent, all unpaid
interest accrued on
such Required Appraisal Mortgage Loan through the most recent Due
-9-
Date prior to such Determination Date at a per annum rate equal to
the related
Net Mortgage Rate (exclusive of any portion thereof that
constitutes Additional
Interest), (iii) all accrued but unpaid (from related collections)
Master
Servicing Fees and Special Servicing Fees with respect to such
Required
Appraisal Mortgage Loan and, without duplication, all accrued or
otherwise
incurred but unpaid (from related collections) Additional Trust
Fund Expenses
with respect to such Required Appraisal Mortgage Loan, (iv) all
related
unreimbursed Advances made by or on behalf of the Master Servicer,
the Special
Servicer, the Trustee or any Fiscal Agent with respect to such
Required
Appraisal Mortgage Loan, together with (A) interest on those
Advances and (B)
any related Unliquidated Advances, (v) all currently due and unpaid
real estate
taxes and unfunded improvement reserves and assessments, insurance
premiums and,
if applicable, ground rents with respect to the related Mortgaged
Property and
(vi) if applicable, in the case of the Westchester Loan
Combination, to the
extent known to the Master Servicer, any and all interest accrued
on delinquency
advances comparable to P&I Advances made in respect of the
Westchester Pari
Passu Non-Trust Loan (or any successor REO Loan with respect
thereto) that is
payable under any Westchester Pari Passu Non-Trust Loan
Securitization
Agreement; over (b) an amount equal to the sum of (i) the Required
Appraisal
Value and (ii) all escrows, reserves and letters of credit held as
additional
collateral held with respect to such Required Appraisal Mortgage
Loan. If the
Special Servicer fails to obtain a Required Appraisal (or letter
update or
internal valuation, if applicable) within the time limit described
in Section
3.09(a), and such Required Appraisal (or letter update or internal
valuation, if
applicable) is required thereunder, then the Appraisal Reduction
Amount for the
related Required Appraisal Mortgage Loan will equal 25% of the
Stated Principal
Balance of such Required Appraisal Mortgage Loan, to be adjusted
upon receipt of
a Required Appraisal or letter update or internal valuation, if
applicable.
Notwithstanding anything herein to the contrary, the Westchester
Loan
Combination shall be treated as a single Required Appraisal
Mortgage Loan for
purposes of calculating an Appraisal Reduction Amount. Any
Appraisal Reduction
Amount with respect to the Westchester Loan Combination shall be
allocated first
to the Westchester Subordinate Non-Trust Loans, in reverse order of
seniority
(i.e., commencing with the most junior Westchester Subordinate
Non-Trust Loan),
in each case up to the outstanding principal balance thereof, and
then to the
Westchester Trust Mortgage Loan and the Westchester Pari Passu
Non-Trust Loan,
on a pro rata (based on their respective outstanding principal
balances) and
pari passu basis.
"Appraised Value": With respect to each Mortgaged Property and REO
Property, the appraised value thereof based upon the most recent
Appraisal (or
letter update or internal valuation, if applicable) that is
contained in the
related Servicing File upon which the Master Servicer, the Special
Servicer, the
Trustee and any Fiscal Agent may conclusively rely.
"ARD Loan": Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated
Repayment Date, such
Mortgage Loan will accrue Additional Interest at the rate specified
in the
related Mortgage Note and the Mortgagor is required to apply excess
monthly cash
flow generated by the related Mortgaged Property to the repayment
of the
outstanding principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(c).
-10-
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or
instrument
executed by the Mortgagor in connection with the origination of the
related
Mortgage Loan.
"Assumed Periodic Payment": With respect to any Balloon Loan for
its
Stated Maturity Date (provided that such Mortgage Loan has not been
paid in full
and no other Liquidation Event has occurred in respect thereof on
or before such
Stated Maturity Date) and for any related Due Date thereafter as of
which such
Mortgage Loan remains outstanding and part of the Trust Fund (or,
in the case of
a Non-Trust Loan for any Due Date, as of which such Mortgage Loan
remains
outstanding and the related Trust Mortgage Loan remains part of the
Trust Fund),
the Periodic Payment of principal and/or interest deemed to be due
in respect
thereof on such Due Date equal to the Periodic Payment that would
have been due
in respect of such Mortgage Loan on such Due Date if the related
Mortgagor had
been required to continue to pay principal in accordance with the
amortization
schedule, if any, and to accrue interest at the Mortgage Rate, in
effect
immediately prior to, and without regard to the occurrence of, its
Stated
Maturity Date. With respect to any REO Loan, for any related Due
Date as of
which the related REO Property or any interest therein remains part
of the Trust
Fund, the Periodic Payment of principal and/or interest deemed to
be due in
respect thereof on such Due Date equal to the Periodic Payment that
would have
been due in respect of the predecessor Mortgage Loan on such Due
Date had it
remained outstanding (or, if the predecessor Mortgage Loan was a
Balloon Loan
and such Due Date coincides with or follows what had been its
Stated Maturity
Date, equal to the Assumed Periodic Payment that would have been
deemed due in
respect of the predecessor Mortgage Loan on such Due Date had it
remained
outstanding).
"Authenticating Agent": Any authenticating agent appointed pursuant
to
Section 8.12 (or, in the absence of any such appointment, the
Trustee).
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum of, without duplication, (i)
the aggregate
of the amounts on deposit in the Collection Account and the
Distribution Account
as of the close of business on the related Determination Date and
the amounts
collected by or on behalf of the Master Servicer as of the close of
business on
such Determination Date and required to be deposited in the
Collection Account,
which amounts shall, in the case of the initial Distribution Date,
include the
Closing Date Deposit, (ii) the aggregate amount of any P&I
Advances made by the
Master Servicer, the Trustee or any Fiscal Agent for distribution
on the
Certificates on such Distribution Date pursuant to Section 4.03,
(iii) the
aggregate amount transferred from the Pool REO Account (if
established) and/or
any Loan Combination Custodial Account to the Collection Account
after the
Determination Date in the month of such Distribution Date, but on
or prior to
the P&I Advance Date in such month, pursuant to Section 3.16(c)
and/or Section
3.05(e), as applicable, (iv) the aggregate amount deposited by the
Master
Servicer in the Collection Account for such Distribution Date
pursuant to
Section 3.19(a) in connection with Prepayment Interest Shortfalls
and
Casualty/Condemnation Interest Shortfalls, and (v) for each
Distribution Date
occurring in March, the aggregate of the Interest Reserve Amounts
in respect of
each Interest Reserve Loan deposited into the Distribution Account
pursuant to
Section 3.05(c), net of (b) the portion of the amount described in
clause (a) of
this definition that represents one or more of the following: (i)
collected
Periodic Payments that are due on a Due Date following the end of
the related
Collection Period, (ii) any amounts payable or reimbursable to any
Person from
(A) the Collection Account pursuant to clauses (ii)-(xvi), (xix)
and (xxi) of
Section 3.05(a) or (B) the Distribution Account pursuant to clauses
(ii)-(vi)
and (ix) of Section 3.05(b), (iii) Prepayment Premiums and Yield
Maintenance
Charges, (iv) Additional Interest, (v) with
-11-
respect to the Distribution Date occurring in February of each year
and in
January of each year that is not a leap year, the Interest Reserve
Amounts with
respect to the Interest Reserve Loans to be withdrawn from the
Distribution
Account and deposited in the Interest Reserve Account in respect of
such
Distribution Date and held for future distribution pursuant to
Section 3.04(c)
and (vi) any amounts deposited in the Collection Account or the
Distribution
Account in error.
"B-Note Non-Trust Loan": With respect to each A-Note Trust Mortgage
Loan, the other Mortgage Loan that (i) is not included in the Trust
Fund, (ii)
is subordinate in right of payment to such A-Note Trust Mortgage
Loan to the
extent set forth in the related Loan Combination Intercreditor
Agreement and
(iii) is secured by the same Mortgage on the same Mortgaged
Property as such
A-Note Trust Mortgage Loan.
"B-Noteholder": Each holder of (i) the Mortgage Note for a B-Note
Non-Trust Loan and (ii) the corresponding rights under the related
Loan
Combination Intercreditor Agreement.
"Balloon Loan": Any Mortgage Loan that by its original terms or by
virtue of any modification entered into as of the Closing Date
provides for an
amortization schedule extending beyond its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Loan as of any date
of
determination, the Scheduled Payment payable on the Stated Maturity
Date of such
Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from
time
to time (Title 11 of the United States Code).
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Book-Entry Non-Registered Certificate": Any Book-Entry Certificate
that is a Non-Registered Certificate.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York or the city in
which the
Corporate Trust Office of the Trustee (which as of the Closing Date
is
Minneapolis, Minnesota), or the offices of the Master Servicer
(which as of the
Closing Date is Overland Park, Kansas), or the offices of the
Special Servicer
(which as of the Closing Date is Overland Park, Kansas), are
located, are
authorized or obligated by law or executive order to remain closed.
"Casualty/Condemnation Interest Shortfall": With respect to any
Trust
Mortgage Loan as to which a Casualty/Condemnation Principal
Prepayment was
received during any Collection Period and was applied to such
Mortgage Loan as
an unscheduled payment of principal prior to such Mortgage Loan's
Due Date in
such Collection Period, the amount of interest, to the extent not
collected from
the related Mortgagor, that would have accrued (at a rate per annum
equal to the
sum of (x) the related Net 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
-12-
the day immediately preceding such Due Date, inclusive (net of any
portion
thereof that would have constituted Penalty Interest and Additional
Interest, if
applicable).
"Casualty/Condemnation Principal Prepayment": With respect to any
Trust Mortgage Loan, any amounts constituting Insurance Proceeds or
amounts
received in connection with the taking of all or a part of a
Mortgaged Property
by the exercise of the power of eminent domain or condemnation,
that are applied
as an unscheduled principal prepayment in accordance with the
provisions of this
Pooling and Servicing Agreement, in reduction of the principal
balance of such
Mortgage Loan.
"CERCLA": The Comprehensive Environmental Response, Compensation
and
Liability Act of 1980, as amended.
"Certificate": Any one of the Merrill Lynch Mortgage Trust
2005-MCP1,
Commercial Mortgage Pass-Through Certificates, Series 2005-MCP1, as
executed by
the Certificate Registrar and authenticated and delivered hereunder
by the
Authenticating Agent.
"Certificate Factor": With respect to any Class of Regular
Certificates as of any date of determination, a fraction, expressed
as a decimal
carried to at least eight places, the numerator of which is the
then current
Class Principal Balance, Class XC Notional Amount or Class XP
Notional Amount,
as applicable, of such Class of Regular Certificates and the
denominator of
which is the Original Class Principal Balance or Original Notional
Amount, as
the case may be, of such Class of Regular Certificates.
"Certificate Notional Amount": With respect to any Class XC or
Class
XP Certificate, as of any date of determination, the then notional
amount of
such Certificate equal to the product of (a) the Percentage
Interest evidenced
by such Certificate, multiplied by (b) the then Class XC or Class
XP Notional
Amount, as applicable.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected
on the books
of the Depository or on the books of a Depository Participant or on
the books of
an indirect participating brokerage firm for which a Depository
Participant acts
as agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate, as of any date of determination, the then outstanding
principal
amount of such Certificate equal to the product of (a) the
Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class
Principal
Balance of the Class of Certificates to which such Certificate
belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02(a).
"Certificateholder": The Person in whose name a Certificate is
registered in the Certificate Register, except that (i) neither a
Disqualified
Organization nor a Disqualified Non-United States Tax Person shall
be Holder of
a Residual Certificate for any purpose hereof and, (ii) solely for
the purposes
of giving any consent, approval or waiver pursuant to this
Agreement that
relates to any of the Depositor, any Mortgage Loan Seller, the
Master Servicer,
the Special Servicer, the Trustee or any Fiscal Agent in its
respective capacity
as such (except with respect to amendments or waivers referred to
in Sections
7.04 and 11.01 hereof and any consent, approval or waiver required
or permitted
to be made
-13-
by the Plurality Subordinate Certificateholder or the Controlling
Class
Representative and any election, removal or replacement of the
Special Servicer
or the Controlling Class Representative pursuant to Section 6.09),
any
Certificate registered in the name of the Depositor, any Mortgage
Loan Seller,
the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent, as
the case may be, or any Certificate registered in the name of any
of their
respective Affiliates, shall be deemed not to be outstanding, and
the Voting
Rights to which it is entitled shall not be taken into account in
determining
whether the requisite percentage of Voting Rights necessary to
effect any such
consent, approval or waiver that relates to it has been obtained.
The
Certificate Registrar shall be entitled to request and conclusively
rely upon a
certificate of the Depositor, the Master Servicer or the Special
Servicer in
determining whether a Certificate is registered in the name of an
Affiliate of
such Person. All references herein to "Holders" or
"Certificateholders" shall
reflect the rights of Certificate Owners as they may indirectly
exercise such
rights through the Depository and the Depository Participants,
except as
otherwise specified herein; provided, however, that the parties
hereto shall be
required to recognize as a "Holder" or "Certificateholder" only the
Person in
whose name a Certificate is registered in the Certificate Register.
"Certification Parties": As defined in Section 8.16(b).
"Certifying Person": As defined in Section 8.16(b).
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Senior Certificates": The Class A-1, Class A-2, Class A-3,
Class A-SB, Class A-4 and Class A-1A Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-1A Certificate": Any one of the Certificates with a "Class
A-1A" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-4 Certificate": Any one of the Certificates with a "Class
A-4" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
-14-
"Class A-SB Certificate": Any one of the Certificates with a "Class
A-SB" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-SB Planned Principal Balance": With respect to any
Distribution Date, the targeted Class Principal Balance of the
Class A-SB
Certificates for such date set forth on Exhibit S attached hereto.
"Class AJ Certificate": Any one of the Certificates with a "Class
AJ"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class AM Certificate": Any one of the Certificates with a "Class
AM"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
-15-
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class M Certificate": Any one of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class N Certificate": Any one of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class P Certificate": Any one of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class Principal Balance": The aggregate principal balance of any
Class of Sequential Pay Certificates outstanding from time to time.
As of the
Closing Date, the Class Principal Balance of each Class of
Sequential Pay
Certificates shall equal the Original Class Principal Balance
thereof. On each
Distribution Date, the Class Principal Balance of each Class of
Sequential Pay
Certificates shall be reduced by the amount of any distributions of
principal
made thereon on such Distribution Date pursuant to Section 4.01 or
9.01, as
applicable, and shall be further reduced by the amount of any
Realized Losses
and Additional Trust Fund Expenses allocated thereto on such
Distribution Date
pursuant to Section 4.04(a). The respective Class Principal
Balances of any
Classes of Sequential Pay Certificates to which there has been
allocated
unreimbursed Realized Losses and Additional Trust Fund Expenses
shall be
increased, in sequential order beginning with the most senior
affected Class of
Sequential Pay Certificates, by the amount of any recoveries of
Nonrecoverable
Advances and/or interest thereon which were reimbursed and/or paid
in a prior
Collection Period from the principal portion of general collections
on the
Mortgage Pool and which are included in the Principal Distribution
Amount for
the current Distribution Date; provided that the Class Principal
Balance of any
such Class of Sequential Pay Certificates shall in no event be
increased by more
than the amount of unreimbursed Realized Losses and Additional
Trust Fund
Expenses previously allocated thereto (which unreimbursed Realized
Losses and
Additional Trust Fund Expenses shall be reduced by the amount of
the increase in
such Class Principal Balance); and provided, further, that the
aggregate
increase in the Class Principal Balances of the respective Classes
of Sequential
Pay Certificates on any Distribution Date shall not exceed the
excess, if any,
of (i) the aggregate Stated Principal Balance of, and all
Unliquidated Advances
with respect to, the Mortgage Pool that will be outstanding
immediately
following such Distribution Date, over (ii) the aggregate of the
Class Principal
Balances of the respective Classes of Sequential Pay Certificates
outstanding
immediately following the distributions to be made on such
Distribution Date,
but prior to any such increase in any of those Class Principal
Balances.
Distributions in respect of a reimbursement of Realized Losses and
Additional
Trust Fund Expenses previously allocated to a Class of Sequential
Pay
Certificates shall not constitute distributions of principal and
shall not
result in reduction of the related Class Principal Balance.
-16-
"Class Q Certificate": Any one of the Certificates with a "Class Q"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of
Exhibit A-7
attached hereto, and evidencing the sole class of "residual
interests" in REMIC
I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of
Exhibit A-7
attached hereto, and evidencing the sole class of "residual
interests" in REMIC
II for purposes of the REMIC Provisions.
"Class X Certificates": The Class XC and Class XP Certificates.
"Class XC Certificate": Any one of the Certificates with a "Class
XC"
designation on the face thereof, substantially in the form of
Exhibit A-3
attached hereto, and evidencing multiple "regular interests" in
REMIC II for
purposes of the REMIC Provisions.
"Class XC Components": Each of the Components identified in the
table
in the definition of "Component" as being a Class XC Component.
"Class XC Notional Amount": With respect to the Class XC
Certificates
and any date of determination, the sum of the then Component
Notional Amounts of
all of the Class XC Components.
"Class XC Strip Rate": With respect to any Class XC Component that
does not have a Corresponding Class XP Component, for any
Distribution Date, a
rate per annum equal to (i) the Weighted Average Net Mortgage
Pass-Through Rate
for such Distribution Date, minus (ii) the Pass-Through Rate for
the
Corresponding Certificates; and in the case of any Class XC
Component that has a
Corresponding Class XP Component, for any Distribution Date, a rate
per annum
equal to (i) for any Distribution Date occurring on or before the
Class XP
Termination Date for such Corresponding Class XP Component, (x) the
Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date
minus (y) the
sum of the Pass-Through Rate for the Corresponding Certificates for
such
Distribution Date and the Class XP Strip Rate for such
Corresponding Class XP
Component for such Distribution Date, and (ii) for any Distribution
Date
occurring after the Class XP Termination Date for such
Corresponding Class XP
Component, a rate per annum equal to (x) the Weighted Average Net
Mortgage
Pass-Through Rate for such Distribution Date, minus (y) the
Pass-Through Rate
for the Corresponding Certificates. In no event, however, shall any
Class XC
Strip Rate be less than zero.
"Class XP Certificate": Any one of the Certificates with a "Class
XP"
designation on the face thereof, substantially in the form of
Exhibit A-2
attached hereto, and evidencing multiple "regular interests" in
REMIC II for
purposes of the REMIC Provisions.
"Class XP Components": Each of the Components identified in the
table
in the definition of "Component" as being a Class XP Component.
"Class XP Notional Amount":
-17-
(i) With respect to any Distribution Date on or prior to the
Distribution Date in December 2005, the sum of (a) the lesser of
$63,711,000 and the Class Principal Balance of the Class A-1
Certificates
outstanding from time to time, (b) the lesser of $128,349,000 and
the Class
Principal Balance of the Class A-1A Certificates outstanding from
time to
time, and (c) the Class Principal Balance of the Class A-2, Class
A-3,
Class A-SB, Class A-4, Class AM, Class AJ, Class B, Class C, Class
D, Class
E, Class F, Class G, Class H, Class J, Class K and Class L
Certificates
outstanding from time to time;
(ii) With respect to any Distribution Date after the Distribution
Date
in December 2005 through and including the Distribution Date in
June 2006,
the sum of (a) the lesser of $58,376,000 and the Class Principal
Balance of
the Class A-1 Certificates outstanding from time to time, (b) the
lesser of
$127,889,000 and the Class Principal Balance of the Class A-1A
Certificates
outstanding from time to time, and (c) the Class Principal Balance
of the
Class A-2, Class A-3, Class A-SB, Class A-4, Class AM, Class AJ,
Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K and
Class L Certificates outstanding from time to time;
(iii) With respect to any Distribution Date after the Distribution
Date in June 2006 through and including the Distribution Date in
December
2006, the sum of (a) the lesser of $26,651,000 and the Class
Principal
Balance of the Class A-1 Certificates outstanding from time to
time, (b)
the lesser of $125,294,000 and the Class Principal Balance of the
Class
A-1A Certificates outstanding from time to time, and (c) the Class
Principal Balance of the Class A-2, Class A-3, Class A-SB, Class
A-4, Class
AM, Class AJ, Class B, Class C, Class D, Class E, Class F, Class G,
Class
H, Class J, Class K and Class L Certificates outstanding from time
to time;
(iv) With respect to any Distribution Date after the Distribution
Date
in December 2006 through and including the Distribution Date in
June 2007,
the sum of (a) the lesser of $336,810,000 and the Class Principal
Balance
of the Class A-2 Certificates outstanding from time to time, (b)
the lesser
of $122,307,000 and the Class Principal Balance of the Class A-1A
Certificates outstanding from time to time, and (c) the Class
Principal
Balance of the Class A-3, Class A-SB, Class A-4, Class AM, Class
AJ, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K
and Class L Certificates outstanding from time to time;
(v) With respect to any Distribution Date after the Distribution
Date
in June 2007 through and including the Distribution Date in
December 2007,
the sum of (a) the lesser of $300,686,000 and the Class Principal
Balance
of the Class A-2 Certificates outstanding from time to time, (b)
the lesser
of $119,354,000 and the Class Principal Balance of the Class A-1A
Certificates outstanding from time to time, (c) the Class Principal
Balance
of the Class A-3, Class A-SB, Class A-4, Class AM, Class AJ, Class
B, Class
C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates
outstanding from time to time, and (d) the lesser of $3,472,000 and
the
Class Principal Balance of the Class K Certificates outstanding
from time
to time;
(vi) With respect to any Distribution Date after the Distribution
Date
in December 2007 through and including the Distribution Date in
June 2008,
the sum of (a) the lesser of $265,212,000 and the Class Principal
Balance
of the Class A-2 Certificates outstanding from
-18-
time to time, (b) the lesser of $116,428,000 and the Class
Principal
Balance of the Class A-1A Certificates outstanding from time to
time, (c)
the Class Principal Balance of the Class A-3, Class A-SB, Class
A-4, Class
AM, Class AJ, Class B, Class C, Class D, Class E, Class F and Class
G
Certificates outstanding from time to time, and (d) the lesser of
$14,922,000 and the Class Principal Balance of the Class H
Certificates
outstanding from time to time;
(vii) With respect to any Distribution Date after the Distribution
Date in June 2008 through and including the Distribution Date in
December
2008, the sum of (a) the lesser of $230,685,000 and the Class
Principal
Balance of the Class A-2 Certificates outstanding from time to
time, (b)
the lesser of $113,460,000 and the Class Principal Balance of the
Class
A-1A Certificates outstanding from time to time, (c) the Class
Principal
Balance of the Class A-3, Class A-SB, Class A-4, Class AM, Class
AJ, Class
B, Class C, Class D, Class E and Class F Certificates outstanding
from time
to time, and (d) the lesser of $16,088,000 and the Class Principal
Balance
of the Class G Certificates outstanding from time to time;
(viii) With respect to any Distribution Date after the Distribution
Date in December 2008 through and including the Distribution Date
in June
2009, the sum of (a) the lesser of $196,793,000 and the Class
Principal
Balance of the Class A-2 Certificates outstanding from time to
time, (b)
the lesser of $110,532,000 and the Class Principal Balance of the
Class
A-1A Certificates outstanding from time to time, (c) the Class
Principal
Balance of the Class A-3, Class A-SB, Class A-4, Class AM, Class
AJ, Class
B, Class C, Class D, Class E and Class F Certificates outstanding
from time
to time, and (d) the lesser of 441,000 and the Class Principal
Balance of
the Class G Certificates outstanding from time to time;
(ix) With respect to any distribution date after the Distribution
Date
in June 2009 through and including the Distribution Date in
December 2009,
the sum of (a) the lesser of 7,967,000 and the Class Principal
Balance of
the Class A-2 Certificates outstanding from time to time, (b) the
lesser of
$107,734,000 and the Class Principal Balance of the Class A-1A
Certificates
outstanding from time to time, (c) the Class Principal Balance of
the Class
A-3, Class A-SB, Class A-4, Class AM, Class AJ, Class B, Class C,
Class D
and E Certificates outstanding from time to time, and (d) the
lesser of
$13,590,000 and the Class Principal Balance of the Class F
Certificates
outstanding from time to time;
(x) With respect to any distribution date after the Distribution
Date
in December 2009 through and including the Distribution Date in
June 2010,
the sum of (a) the lesser of $12,346,000 and the Class Principal
Balance of
the Class A-SB Certificates outstanding from time to time, (b) the
lesser
of $104,972,000 and the Class Principal Balance of the Class A-1A
Certificates outstanding from time to time, (c) the Class Principal
Balance
of the Class A-4, Class AM, Class AJ, Class B, Class C and Class D
Certificates outstanding from time to time, and (d) the lesser of
$18,611,000 and the Class Principal Balance of the Class E
Certificates
outstanding from time to time;
(xi) With respect to any Distribution Date after the Distribution
Date
in June 2010 through and including the Distribution Date in
December 2010,
the sum of (a) the lesser of $511,468,000 and the Class Principal
Balance
of the Class A-4 Certificates outstanding from time to time, (b)
the lesser
of $102,332,000 and the Class Principal Balance of the Class A-1A
Certificates outstanding from time to time, (c) the Class Principal
Balance
of the Class AM,
-19-
Class AJ, Class B, Class C and Class D Certificates outstanding
from time
to time, and (d) the lesser of $7,022,000 and the Class Principal
Balance
of the Class E Certificates outstanding from time to time;
(xii) With respect to any Distribution Date after the Distribution
Date in December 2010 through and including the Distribution Date
in June
2011, the sum of (a) the lesser of $485,644,000 and the Class
Principal
Balance of the Class A-4 Certificates outstanding from time to
time, (b)
the lesser of $99,725,000 and the Class Principal Balance of the
Class A-1A
Certificates outstanding from time to time, (c) the Class Principal
Balance
of the Class AM, Class AJ, Class B and Class C Certificates
outstanding
from time to time, and (d) the lesser of $28,866,000 and the Class
Principal Balance of the Class D Certificates outstanding from time
to
time;
(xiii) With respect to any Distribution Date after the Distribution
Date in June 2011 through and including the Distribution Date in
December
2011 the sum of (a) the lesser of $460,906,000 and the Class
Principal
Balance of the Class A-4 Certificates outstanding from time to
time, (b)
the lesser of $97,232,000 and the Class Principal Balance of the
Class A-1A
Certificates outstanding from time to time, (c) the Class Principal
Balance
of the Class AM, Class AJ, Class B and Class C Certificates
outstanding
from time to time, and (d) the lesser of $18,534,000 and the Class
Principal Balance of the Class D Certificates outstanding from time
to
time;
(xiv) With respect to any Distribution Date after the Distribution
Date in December 2011 through and including the Distribution Date
in June
2012 the sum of (a) the lesser of $404,398,000 and the Class
Principal
Balance of the Class A-4 Certificates outstanding from time to
time, (b)
the lesser of $90,252,000 and the Class Principal Balance of the
Class A-1A
Certificates outstanding from time to time, (c) the Class Principal
Balance
of the Class AM, Class AJ, Class B and Class C Certificates
outstanding
from time to time, and (d) the lesser of $8,620,000 and the Class
Principal
Balance of the Class D Certificates outstanding from time to time;
(xv) With respect to any Distribution Date after the Distribution
Date
in June 2012 through and including the Distribution Date in
December 2012
the sum of (a) the lesser of $381,876,000 and the Class Principal
Balance
of the Class A-4 Certificates outstanding from time to time, (b)
the lesser
of $88,012,000 and the Class Principal Balance of the Class A-1A
Certificates outstanding from time to time, (c) the Class Principal
Balance
of the Class AM, Class AJ and Class B Certificates outstanding from
time to
time, and (d) the lesser of $14,636,000 and the Class Principal
Balance of
the Class C Certificates outstanding from time to time;
(xvi) With respect to any Distribution Date after the Distribution
Date in December 2012 through and including the Distribution Date
in June
2013, the sum of (a) the lesser of $356,857,000 and the Class
Principal
Balance of the Class A-4 Certificates outstanding from time to
time, (b)
the lesser of $85,818,000 and the Class Principal Balance of the
Class A-1A
Certificates outstanding from time to time, (c) the Class Principal
Balance
of the Class AM, Class AJ and Class B Certificates outstanding from
time to
time, and (d) the lesser of $5,863,000 and the Class Principal
Balance of
the Class C Certificates outstanding from time to time; and
-20-
(xvii) With respect to any Distribution Date after the Distribution
Date in June 2013, $0.
"Class XP Reference Rate": For any Distribution Date, the rate per
annum corresponding to such Distribution Date on Exhibit L.
"Class XP Strip Rate": With respect to any Class XP Component for
any
Distribution Date, a rate per annum equal to (1) for any
Distribution Date
occurring on or before the Class XP Termination Date for such Class
XP
Component, the excess, if any, of (x) the lesser of (i) the
Weighted Average Net
Mortgage Pass-Through Rate for such Distribution Date and (ii) the
Class XP
Reference Rate for such Distribution Date, over (y) the
Pass-Through Rate in
effect for such Distribution Date for the Corresponding
Certificates (provided
that in no event shall any Class XP Strip Rate be less than zero),
and (2) for
any Distribution Date occurring after the Class XP Termination Date
for such
Class XP Component, 0% per annum.
"Class XP Termination Date": With respect to each Class XP
Component,
the Distribution Date that occurs in the month and year specified
in the table
in the definition of "Component".
"Class Z Certificate": Any one of the Certificates with a "Class Z"
designation on the face thereof, substantially in the form of
Exhibit A-8
attached hereto, and evidencing a proportionate interest in Grantor
Trust Z.
"Closing Date": June 29, 2005.
"Closing Date Deposit": With respect to each of MLMLI and PNC, a
cash
amount to be deposited by each such Mortgage Loan Seller, as
applicable,
pursuant to the related Mortgage Loan Purchase Agreement, in
respect of each
Trust Mortgage Loan (that is one of the Trust Mortgage Loans
identified as loan
numbers 5, 13, 38, 67 and 102 on the Mortgage Loan Schedule) sold
by such
Mortgage Loan Seller to the Depositor that does not have its first
Scheduled
Payment due until August 2005, which cash amount represents the
aggregate amount
of interest that would have accrued during the entire month of June
2005 at the
related Net Mortgage Rate on the Cut-off Date Balance of that Trust
Mortgage
Loan. The Closing Date Deposit for each of the Trust Mortgage Loans
identified
in the preceding sentence is $353,112.24, $137,027.97, $52,120.88,
$29,633.24
and $12,060.30, respectively. With respect to Countrywide, a cash
amount to be
deposited by such Mortgage Loan Seller pursuant to the related
Mortgage Loan
Purchase Agreement in respect of the Trust Mortgage Loan identified
as loan
number 29 (Tuscany at McCormick Ranch) on the Mortgage Loan
Schedule, which cash
amount represents a portion of the aggregate amount of interest
that would have
accrued during the entire month of June 2005 at the related
Mortgage Rate on the
Cut-off Date Balance of such Trust Mortgage Loan, which Closing
Date Deposit is
in the amount of $8,444.76.
"Closing Date Deposit Mortgage Loan": Any Trust Mortgage Loan
(excluding the Trust Mortgage Loan identified as loan number 29
(Tuscany at
McCormick Ranch) on the Mortgage Loan Schedule) in respect of which
a Closing
Date Deposit is required to be made by the related Mortgage Loan
Seller pursuant
to the applicable Mortgage Loan Purchase Agreement.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither
such
association nor any successor remains in existence, "CMSA" shall be
deemed to
refer to such other association or organization as may exist
-21-
whose principal membership consists of servicers, trustees,
issuers, placement
agents and underwriters generally involved in the commercial
mortgage loan
securitization industry, which is the principal such association or
organization
in the commercial mortgage loan securitization industry and one of
whose
principal purposes is the establishment of industry standards for
reporting
transaction-specific information relating to commercial
mortgage-backed
pass-through certificates and commercial mortgage-backed bonds and
the
commercial mortgage loans and foreclosed properties underlying or
backing them
to investors holding or owning such certificates or bonds, and any
successor to
such other association or organization. If an organization or
association
described in one of the preceding sentences of this definition does
not exist,
"CMSA" shall be deemed to refer to such other association or
organization as
shall be selected by the Master Servicer and reasonably acceptable
to the
Trustee, the Special Servicer and the Controlling Class
Representative.
"CMSA Advance Recovery Report": A report substantially in the form
of,
and containing the information called for in, the downloadable form
of the
"Advance Recovery Report" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Bond Level File": The monthly report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Bond Level File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Collateral Summary File": A report substantially in the form
of,
and containing the information called for in, the downloadable form
of the
"Collateral Summary File" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Comparative Financial Status Report": A report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Comparative Financial Status Report" available as of the
Closing Date on
the CMSA Website, or such other form for the presentation of such
information
and containing such additional information as may from time to time
be
recommended by the CMSA for commercial mortgage-backed securities
transactions
generally.
"CMSA Delinquent Loan Status Report": A report substantially in the
form of, and containing the information called for in, the
downloadable form of
the "Delinquent Loan Status Report" available as of the Closing
Date on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of
the
"Financial File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
-22-
"CMSA Historical Liquidation Report": A report substantially in the
form of, and containing the information called for in, the
downloadable form of
the "Historical Liquidation Report" available as of the Closing
Date on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": A report substantially in the form of, and containing the
information
called for in, the downloadable form of the "Historical Loan
Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on
the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA Loan Level Reserve/LOC Report": A report substantially in the
form of, and containing the information called for in, the
downloadable form of
the "Loan Level Reserve Report" on the CMSA Website, or in such
other form for
the presentation of such information and containing such additional
information
as may from time to time be recommended by the CMSA for commercial
mortgage
securities transactions generally.
"CMSA Loan Periodic Update File": The monthly report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Loan Periodic Update File" available as of the Closing Date
on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA Loan Setup File": A report substantially in the form of, and
containing the information called for in, the downloadable form of
the "Loan
Setup File" available as of the Closing Date on the CMSA Website,
or such other
form for the presentation of such information and containing such
additional
information as may from time to time be recommended by the CMSA for
commercial
mortgage-backed securities transactions generally.
"CMSA NOI Adjustment Worksheet": A report substantially in the form
of, and containing the information called for in, the downloadable
form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally, and
in any event,
shall present the computations made in accordance with the
methodology described
in such form to "normalize" the full year net operating income, net
cash flow
and debt service coverage numbers used in the other reports
required by this
Agreement.
"CMSA Operating Statement Analysis Report": A report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Operating Statement Analysis Report" available as of the
Closing Date on
the CMSA Website or in such other form for the presentation of such
information
and containing such additional information as may from time to time
be
recommended by the CMSA for commercial mortgage-backed securities
transactions
generally.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of
the "Property
File" available as of the Closing Date
-23-
on the CMSA Website, or such other form for the presentation of
such information
and containing such additional information as may from time to time
be
recommended by the CMSA for commercial mortgage-backed securities
transactions
generally.
"CMSA Reconciliation of Funds Report": A report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "Reconciliation of Funds Report" available as of the Closing
Date on the
CMSA Website, or in such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA REO Status Report": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "REO
Status Report" available on the CMSA Website, or in such other form
for the
presentation of such information and containing such additional
information as
may from time to time be recommended by the CMSA for commercial
mortgage
securities transactions generally.
"CMSA Servicer Watch List": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "Servicer
Watch List" available as of the Closing Date on the CMSA Website,
or in such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Special Servicer Loan File": A report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Special Servicer Loan File" on the CMSA Website, or in such other
form for the
presentation of such information and containing such additional
information as
may from time to time be recommended by the CMSA for commercial
mortgage
securities transactions generally.
"CMSA Website": The CMSA's Website located at "www.cmbs.org" or
such
other primary website as the CMSA may establish for dissemination
of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended, and
applicable
temporary or final regulations of the U.S. Department of the
Treasury
promulgated thereunder.
"Collection Account": One or more segregated accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the
Trustee in trust for the Certificateholders, which shall be
entitled: "Midland
Loan Services, Inc., as Master Servicer for Wells Fargo Bank, N.A.,
as Trustee,
on behalf of and in trust for the registered holders of Merrill
Lynch Mortgage
Trust 2005-MCP1, Commercial Mortgage Pass-Through Certificates,
Series
2005-MCP1".
"Collection Period": Individually and collectively, as the context
may
require: with respect to any Distribution Date and each Mortgage
Loan and any
successor REO Loan, the period commencing on the day immediately
following the
related Determination Date for such Mortgage Loan for the preceding
Distribution
Date (or, in the case of the initial Distribution Date, commencing
immediately
following the Cut-off Date) and ending on and including the related
Determination Date for such Mortgage Loan for the subject
Distribution Date. For
the purposes of this Agreement, with respect to any Distribution
Date, the
Collection Period that corresponds to that Distribution Date
(including, for
example, but without limitation, references to "the related
Collection Period")
shall mean the Collection Periods ending in the
-24-
month in which such Distribution Date occurs that are applicable to
the Merrill Trust Mortgage Loans and the PNC Trust Mortgage Loans
and/or the
Collection Periods ending in the month in which such Distribution
Date occurs
that are applicable to the Countrywide Trust Mortgage Loans, as
applicable.
"Component": Any of the 66 components of the Class XC Certificates
(the "Class XC Components") and the 60 components of the Class XP
Certificates
(the "Class XP Components") listed in the following table. The
following table
also sets forth the month and year in which the Class XP
Termination Date for
each Class XP Component occurs and the Corresponding Certificates
for each
Component.
--------------------------------------------------------------
Class Designation
Class XC
Class XP
Class XP
of Corresponding
Component
Component
Termination Date
Certificates
--------------------------------------------------------------
XC-A-1-1
N/A
N/A
A-1
--------------------------------------------------------------
XC-A-1-2
XP-A-1-2
December 2005
A-1
--------------------------------------------------------------
XC-A-1-3
XP-A-1-3
June 2006
A-1
--------------------------------------------------------------
XC-A-1-4
XP-A-1-4
December 2006
A-1
--------------------------------------------------------------
XC-A-1A-1
N/A
N/A
A-1A
--------------------------------------------------------------
XC-A-1A-2
XP-A-1A-2
December 2005
A-1A
--------------------------------------------------------------
XC-A-1A-3
XP-A-1A-3
June 2006
A-1A
--------------------------------------------------------------
XC-A-1A-4
XP-A-1A-4
December 2006
A-1A
--------------------------------------------------------------
XC-A-1A-5
XP-A-1A-5
June 2007
A-1A
--------------------------------------------------------------
XC-A-1A-6
XP-A-1A-6
December 2007
A-1A
--------------------------------------------------------------
XC-A-1A-7
XP-A-1A-7
June 2008
A-1A
--------------------------------------------------------------
XC-A-1A-8
XP-A-1A-8
December 2008
A-1A
--------------------------------------------------------------
XC-A-1A-9
XP-A-1A-9
June 2009
A-1A
--------------------------------------------------------------
XC-A-1A-10
XP-A-1A-10
December 2009
A-1A
--------------------------------------------------------------
XC-A-1A-11
XP-A-1A-11
June 2010
A-1A
--------------------------------------------------------------
XC-A-1A-12
XP-A-1A-12
December 2010
A-1A
--------------------------------------------------------------
XC-A-1A-13
XP-A-1A-13
June 2011
A-1A
--------------------------------------------------------------
XC-A-1A-14
XP-A-1A-14
December 2011
A-1A
--------------------------------------------------------------
XC-A-1A-15
XP-A-1A-15
June 2012
A-1A
--------------------------------------------------------------
XC-A-1A-16
XP-A-1A-16
December 2012
A-1A
--------------------------------------------------------------
XC-A-1A-17
XP-A-1A-17
June 2013
A-1A
--------------------------------------------------------------
XC-A-2-1
XP-A-2-1
December 2006
A-2
--------------------------------------------------------------
XC-A-2-2
XP-A-2-2
June 2007
A-2
--------------------------------------------------------------
XC-A-2-3
XP-A-2-3
December 2007
A-2
--------------------------------------------------------------
XC-A-2-4
XP-A-2-4
June 2008
A-2
--------------------------------------------------------------
XC-A-2-5
XP-A-2-5
December 2008
A-2
--------------------------------------------------------------
XC-A-2-6
XP-A-2-6
June 2009
A-2
--------------------------------------------------------------
XC-A-2-7
XP-A-2-7
December 2009
A-2
--------------------------------------------------------------
XC-A-3
XP-A-3
December 2009
A-3
--------------------------------------------------------------
XC-A-SB-1
XP-A-SB-1
December 2009
A-SB
--------------------------------------------------------------
XC-A-SB-2
XP-A-SB-2
June 2010
A-SB
--------------------------------------------------------------
XC-A-4-1
XP-A-4-1
June 2010
A-4
--------------------------------------------------------------
-25-
--------------------------------------------------------------
Class Designation
Class XC
Class XP
Class XP
of Corresponding
Component
Component
Termination Date
Certificates
--------------------------------------------------------------
XC-A-4-2
XP-A-4-2
December 2010
A-4
--------------------------------------------------------------
XC-A-4-3
XP-A-4-3
June 2011
A-4
--------------------------------------------------------------
XC-A-4-4
XP-A-4-4
December 2011
A-4
--------------------------------------------------------------
XC-A-4-5
XP-A-4-5
June 2012
A-4
--------------------------------------------------------------
XC-A-4-6
XP-A-4-6
December 2012
A-4
--------------------------------------------------------------
XC-A-4-7
XP-A-4-7
June 2013
A-4
--------------------------------------------------------------
XC-AM
XP-AM
June 2013
AM
--------------------------------------------------------------
XC-AJ
XP-AJ
June 2013
AJ
--------------------------------------------------------------
XC-B
XP-B
June 2013
B
--------------------------------------------------------------
XC-C-1
XP-C-1
June 2012
C
--------------------------------------------------------------
XC-C-2
XP-C-2
December 2012
C
--------------------------------------------------------------
XC-C-3
XP-C-3
June 2013
C
--------------------------------------------------------------
XC-D-1
XP-D-1
December 2010
D
--------------------------------------------------------------
XC-D-2
XP-D-2
June 2011
D
--------------------------------------------------------------
XC-D-3
XP-D-3
December 2011
D
--------------------------------------------------------------
XC-D-4
XP-D-4
June 2012
D
--------------------------------------------------------------
XC-E-1
XP-E-1
December 2009
E
--------------------------------------------------------------
XC-E-2
XP-E-2
June 2010
E
--------------------------------------------------------------
XC-E-3
XP-E-3
December 2010
E
--------------------------------------------------------------
XC-F-1
XP-F-1
June 2009
F
--------------------------------------------------------------
XC-F-2
XP-F-2
December 2009
F
--------------------------------------------------------------
XC-G-1
XP-G-1
June 2008
G
--------------------------------------------------------------
XC-G-2
XP-G-2
December 2008
G
--------------------------------------------------------------
XC-G-3
XP-G-3
June 2009
G
--------------------------------------------------------------
XC-H-1
XP-H-1
December 2007
H
--------------------------------------------------------------
XC-H-2
XP-H-2
June 2008
H
--------------------------------------------------------------
XC-J
XP-J
December 2007
J
--------------------------------------------------------------
XC-K-1
XP-K-1
June 2007
K
--------------------------------------------------------------
XC-K-2
XP-K-2
December 2007
K
--------------------------------------------------------------
XC-L
XP-L
June 2007
L
--------------------------------------------------------------
XC-M
N/A
N/A
M
--------------------------------------------------------------
XC-N
N/A
N/A
N
--------------------------------------------------------------
XC-P
N/A
N/A
P
--------------------------------------------------------------
XC-Q
N/A
N/A
Q
--------------------------------------------------------------
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then REMIC I
Principal Balance of
its Corresponding REMIC I Regular Interest.
"Controlling Class": As of any date of determination, the most
subordinate Class of Sequential Pay Certificates (based on the
payment
priorities set forth in Section 4.01(a)) that has a Class Principal
Balance that
is greater than 25% of the Original Class Principal Balance thereof
(without
-26-
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 Senior Certificates shall collectively
be deemed a
single Class of Certificates.
"Controlling Class Representative": As defined in Section 3.25.
"Corporate Trust Office": The principal corporate trust office of
the
Trustee at which at any particular time its corporate trust
business with
respect to this Agreement shall be administered, which office at
the date of the
execution of this Agreement is located at, with respect to
certificate transfer
and payment services, Wells Fargo Center, Sixth Street and
Marquette Avenue,
Minneapolis, Minnesota 55479-0113, and with respect to other
trustee and
securities administration services, 9062 Old Annapolis Road,
Columbia, Maryland
21045, Attention: CMBS Corporate Trust Services - Merrill Lynch
Mortgage Trust
2005-MCP1, Commercial Mortgage Pass-Through Certificates, Series
2005-MCP1.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially
Serviced Mortgage Loan but has ceased to be a Specially Serviced
Mortgage Loan
in accordance with the definition of "Specially Serviced Mortgage
Loan".
"Corresponding Certificates": With respect to any REMIC I Regular
Interest, the Class of Sequential Pay Certificates for which such
REMIC I
Regular Interest is the Corresponding REMIC I Regular Interest or
one of the
Corresponding REMIC I Regular Interests. With respect to any
Component, the
Class of Sequential Pay Certificates designated as the
"Corresponding
Certificates" for such Component in the definition of "Component".
"Corresponding Class XP Component": With respect to any Class XC
Component, the Class XP Component (if any) that, with the
replacement of "XP-"
with "XC-" at the beginning of its designation, has the same
alphanumeric
designation as such Class XC Component.
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Class of Sequential Pay
Certificates.
With respect to any Component, the REMIC I Regular Interest that,
with the
replacement of "L" with "XC" or "XP", as applicable, at the
beginning of its
designation, has the same alphabetic or alphanumeric designation as
such
Component.
"Countrywide": Countrywide Commercial Real Estate Finance, Inc., a
California corporation, or its successor in interest.
"Countrywide Mortgage Loan Purchase Agreement": That certain
mortgage
loan purchase agreement, dated as of June 21, 2005, between the
Depositor and
Countrywide and relating to the transfer of the Countrywide Trust
Mortgage Loans
to the Depositor.
"Countrywide Securities": Countrywide Securities Corporation, a
California corporation, or its successor in interest.
-27-
"Countrywide Trust Mortgage Loans": Each of the Mortgage Loans
transferred and assigned to the Depositor pursuant to the
Countrywide Mortgage
Loan Purchase Agreement.
"Crossed Loan": As defined in Section 2.03(a). The Mortgage Loans
comprising a Loan Combination shall not be deemed to be Crossed
Loans for
purposes of this Agreement.
"Crossed Loan Group": As defined in Section 2.03(a).
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage
Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an
Affiliate of the
Depositor or a Mortgage Loan Seller. If no such custodian has been
appointed or
if such custodian has been so appointed, but the Trustee shall have
terminated
such appointment, then the Trustee shall be the Custodian.
"Cut-off Date": Individually and collectively, as the context may
require: with respect to each Mortgage Loan with a Due Date in June
2005, the
related Due Date of such Mortgage Loan in June 2005; or, with
respect to any
Mortgage Loan that was originated in May or June 2005 and has the
Due Date of
its first Scheduled Payment in July 2005, June 1, 2005; or, with
respect to any
Mortgage Loan that was originated in June 2005 and has the Due Date
of its first
Scheduled Payment in August 2005, the date of origination.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the
Cut-off Date,
after application of all unscheduled payments of principal received
on or before
such date and the principal component of all Periodic Payments due
on or before
such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Trust Mortgage
Loan, as of any date of determination, the ratio of (x) the
annualized Net
Operating Income (before payment of any debt service on such
Mortgage Loan
generated by the related Mortgaged Property during the most
recently ended
period of not less than six months and not more than twelve months
for which
financial statements, if available (whether or not audited) have
been received
by or on behalf of the related Mortgage Loan Seller (prior to the
Closing Date)
or the Master Servicer or the Special Servicer (following the
Closing Date), to
(y) twelve times the amount of the Periodic Payment in effect for
such Mortgage
Loan as of such date of determination or, in the case of the
Westchester Trust
Mortgage Loan, twelve times the amount of the aggregate Periodic
Payment in
effect for the Westchester Trust Mortgage Loan and the Westchester
Pari Passu
Non-Trust Loan as of such date of determination.
"Default Charges": Penalty Interest and/or late payment charges
that
are paid or payable, as the context may require, in respect of any
Mortgage Loan
or REO Loan.
"Defaulted Mortgage Loan": A Mortgage Loan: (i) that is (A)
delinquent
60 days or more in respect of a Periodic Payment (not including the
Balloon
Payment) or (B) delinquent in respect of its Balloon Payment unless
(x) the
related Mortgagor makes an Assumed Periodic Payment on each Due
Date (commencing
with the Due Date of such Balloon Payment) during the period
contemplated in
clause (y), and (y) the Master Servicer receives, within 60 days
after the Due
Date of such Balloon Payment, written evidence from an
institutional lender of
such lender's binding commitment to refinance such Mortgage Loan
within 120 days
after the Due Date of such Balloon Payment and either such 120-day
period has
not expired or it has not been determined, in accordance with the
definition of
-28-
"Specially Serviced Mortgage Loan" that the refinancing could not
reasonably be
expected to occur, in either case such delinquency to be determined
(except as
otherwise provided above) without giving effect to any grace period
permitted by
the related Mortgage or Mortgage Note and without regard to any
acceleration of
payments under the related Mortgage and Mortgage Note; or (ii) as
to which the
Special Servicer has, by written notice to the related Mortgagor,
accelerated
the maturity of the indebtedness evidenced by the related Mortgage
Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": With respect to any Defeasance Loan, the
United States government obligations required or permitted to be
pledged in lieu
of prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan which permits or requires the
related Mortgagor (or permits the holder of such Mortgage Loan to
require the
related Mortgagor) to pledge Defeasance Collateral to such holder
in lieu of
prepayment.
"Deficient Valuation": With respect to any Mortgage Loan other than
a
B-Note Non-Trust Loan, a valuation by a court of competent
jurisdiction of the
Mortgaged Property in an amount less than the then outstanding
principal balance
of the Mortgage Loan (or, with respect to a Mortgage Loan that is
part of the
Westchester Loan Combination, in an amount less than the then
aggregate
outstanding principal balance of such Mortgage Loan and all other
Mortgage Loans
in such Loan Combination that are senior to, or pari passu with,
such Mortgage
Loan), which valuation results from a proceeding initiated under
the Bankruptcy
Code.
"Definitive Certificates": As defined in Section 5.03(a).
"Definitive Non-Registered Certificate": Any Definitive Certificate
that is a Non-Registered Certificate.
"Depositor": Merrill Lynch Mortgage Investors, Inc. or its
successor
in interest.
"Depository": The Depository Trust Company, or any successor
depository hereafter named as contemplated by Section 5.03(c). The
nominee of
the initial Depository for purposes of registering those
Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository
shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the
Uniform
Commercial Code of the State of New York and a "clearing agency"
registered
pursuant to the provisions of Section 17A of the Securities
Exchange Act of
1934, as amended.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the
Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date": For any Distribution Date, (i) with respect
to
the Merrill Trust Mortgage Loans (except the Westchester Trust
Mortgage Loan)
and the PNC Trust Mortgage Loans, the fourth Business Day prior to
the
Distribution Date, (ii) with respect to the Westchester Trust
Mortgage Loan, the
Westchester Early Remittance Date and (iii) with respect to the
Countrywide
Trust Mortgage Loans, subject to the proviso below, the 8th day of
the month in
which such Distribution Date occurs or, if such 8th day is not a
Business Day,
-29-
the next preceding Business Day; provided, that in the case of the
Countrywide
Trust Mortgage Loan identified as loan number 4 (ACP Woodland Park
I) on the
Mortgage Loan Schedule, if the 8th day of a month is not a Business
Day, the
Determination Date shall be the next following Business Day. For
the purposes of
this Agreement, with respect to any Distribution Date, the
Determination Date
that corresponds to that Distribution Date (including, for example,
but without
limitation, references to "the related Determination Date") shall
mean the
Determination Date occurring in the same month as such Distribution
Date that is
applicable to the Merrill Trust Mortgage Loans and the PNC Trust
Mortgage Loans
and/or the Determination Date occurring in the same month as such
Distribution
Date that is applicable to the Countrywide Trust Mortgage Loans, as
applicable.
"Determination Information": As defined in Section 3.18(b).
"Directly Operate": With respect to any REO Property, the
furnishing
or rendering of services to the tenants thereof, the management of
such REO
Property, the holding of such REO Property primarily for sale or
lease or the
performance of any construction work thereon, in each case other
than through an
Independent Contractor; provided, however, that the Trustee (or the
Special
Servicer or any Sub-Servicer on behalf of the Trustee) shall not be
considered
to Directly Operate an REO Property solely because the Trustee (or
the Special
Servicer or any Sub-Servicer on behalf of the Trustee) establishes
rental terms,
chooses tenants, enters into or renews leases, deals with taxes and
insurance,
or makes decisions as to repairs or capital expenditures with
respect to such
REO Property.
"Discount Rate": With respect to any prepaid Trust Mortgage Loan or
Trust REO Loan for purposes of allocating any Prepayment Premium or
Yield
Maintenance Charge received thereon or with respect thereto among
the respective
Classes of the Sequential Pay Certificates (other than any Excluded
Class
thereof), an amount equal to the discount rate stated in the
Mortgage Loan
documents related to such Trust Mortgage Loan or Trust REO Loan
used in
calculating the related Prepayment Premium or Yield Maintenance
Charge; provided
that, if a discount rate is not stated thereon, the "Discount Rate"
will be an
amount equal to the yield (when compounded monthly) on the U.S.
Treasury issue
(primary issue) with a maturity date closest to the maturity date
or Anticipated
Repayment Date, as applicable, for such prepaid Trust Mortgage Loan
or Trust REO
Loan. In the event there are two or more such U.S. Treasury issues
(a) with the
same coupon, the issue with the lowest yield shall apply, and (b)
with maturity
dates equally close to the maturity date or Anticipated Repayment
Date, as
applicable, for the prepaid Trust Mortgage Loan or Trust REO Loan,
the issue
with the earliest maturity date shall apply.
"Disqualified Non-United States Tax Person": With respect to any
Residual Certificate, any Non-United States Tax Person or agent
thereof other
than: (1) a Non-United States Tax Person that (a) holds such
Residual
Certificate and, for purposes of Treasury regulations Section
1.860G-3(a)(3), is
subject to tax under Section 882 of the Code, (b) certifies that it
understands
that, for purposes of Treasury regulations Section
1.860E-1(c)(4)(ii), as a
holder of such Residual Certificate for United States federal
income tax
purposes, it may incur tax liabilities in excess of any cash flows
generated by
such Residual Certificate and intends to pay taxes associated with
holding such
Residual Certificate, and (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
-30-
thereunder and (y) such Transfer of such Residual Certificate will
not be
disregarded for United States federal income tax purposes.
"Disqualified Organization": (i) the United States, any State or
political subdivision thereof, a foreign government, an
international
organization, or any agency or instrumentality of any of the
foregoing, (ii) any
organization (other than certain farmers' cooperatives described in
Section 521
of the Code) that is exempt from the tax imposed by Chapter 1 of
the Code
(including the tax imposed by Section 511 of the Code on unrelated
business
taxable income), (iii) rural electric and telephone cooperatives
described in
Section 1381 of the Code and (iv) any other Person so designated by
the Trustee
or the REMIC Administrator based upon an Opinion of Counsel that
the holding of
an Ownership Interest in a Residual Certificate by such Person may
cause the
Trust or any Person having an Ownership Interest in any Class of
Certificates
(other than such Person) to incur a liability for any federal tax
imposed under
the Code that would not otherwise be imposed but for the Transfer
of an
Ownership Interest in a Residual Certificate to such Person. The
terms "United
States", "State" and "international organization" shall have the
meanings set
forth in Section 7701 of the Code or successor provisions.
"Disqualified Partnership": Any domestic entity classified as a
partnership under the Code, if any of its beneficial owners are
Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest": With respect to any Class of
Regular Certificates for any Distribution Date, the Accrued
Certificate Interest
in respect of such Class of Certificates for such Distribution
Date, reduced
(other than with respect to the Class X Certificates) (to not less
than zero) by
the product of (a) any Net Aggregate Prepayment Interest Shortfall
for such
Distribution Date, multiplied by (b) a fraction, expressed as a
decimal, the
numerator of which is the Accrued Certificate Interest in respect
of such Class
of Certificates for such Distribution Date, and the denominator of
which is the
aggregate Accrued Certificate Interest in respect of all the
Classes of
Sequential Pay Certificates for such Distribution Date; provided
that, if the
aggregate Class Principal Balance of the Sequential Pay
Certificates is reduced
as a result of a Realized Loss caused by a diversion of principal
collections on
the Mortgage Pool to reimburse Nonrecoverable Advances and/or pay
interest
thereon as contemplated by Section 1.02, and if there is a
subsequent recovery
of such amounts that results in the reinstatement of the Class
Principal Balance
of any one or more Classes of Sequential Pay Certificates as
provided in the
definition of "Class Principal Balance", then the amount of
Distributable
Certificate Interest with respect to each Class of Regular
Certificates for the
next succeeding Distribution Date shall be increased by the amount
of any and
all additional Distributable Certificate Interest that would have
been payable
with respect to the subject Class of Regular Certificates if such
diversion of
principal and the corresponding allocation of a Realized Loss (up
to the amount
of the reinstated balances) had not occurred.
"Distribution Account": The segregated account or accounts created
and
maintained by the Trustee pursuant to Section 3.04(b) which shall
be entitled
"Wells Fargo Bank, N.A., as Trustee, in trust for the registered
holders of
Merrill Lynch Mortgage Trust 2005-MCP1, Commercial Mortgage
Pass-Through
Certificates, Series 2005-MCP1".
"Distribution Date": During any given month, the 12th day of such
month, or if the 12th day is not a Business Day, the next
succeeding Business
Day, commencing in July 2005.
"Distribution Date Statement": As defined in Section 4.02(a).
-31-
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior to
its
Stated Maturity Date, the day of the month set forth in the related
Mortgage
Note on which each Periodic Payment on such Mortgage Loan is
scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date,
the day of the
month set forth in the related Mortgage Note on which each Periodic
Payment on
such Mortgage Loan had been scheduled to be first due; and (iii)
any REO Loan,
the day of the month set forth in the related Mortgage Note on
which each
Periodic Payment on the related Mortgage Loan had been scheduled to
be first
due.
"Eligible Account": Any of (i) an account maintained with a federal
or
state chartered depository institution or trust company, and (a)
with respect to
deposits held for 30 days or more in such account, the long-term
deposit or
unsecured debt obligations of which are rated at least "AA" by
S&P (or "A-"
provided the short-term unsecured debt obligations are rated at
least "A-1" by
S&P). "Aa3" by Moody's (if then rated by Moody's) and, if
applicable, at least
"AA-" by Fitch (if then rated by Fitch) (or, with respect to any
such Rating
Agency, such lower rating as will not result in an Adverse Rating
Event or a
Westchester Related MBS Adverse Rating Event, as evidenced in
writing by the
applicable Rating Agency), at any time such funds are on deposit
therein, or (b)
with respect to deposits held for less than 30 days in such
account, the
short-term deposits of which are rated at least "A-1" by S&P,
"P-1" by Moody's
(if then rated by Moody's) and, if applicable, at least "F-1" by
Fitch (if then
rated by Fitch) (or, with respect to any such Rating Agency, such
lower rating
as will not result in an Adverse Rating Event or a Westchester
Related MBS
Adverse Rating Event) as evidenced in writing by the applicable
Rating Agency at
any time such funds are on deposit therein, (ii) an account or
accounts
maintained with PNC so long as PNC (1) has a long-term unsecured
debt rating of
at least "A" and a short-term rating of at least "A-1" from
S&P, (2) has a
long-term unsecured debt rating of at least "A1" and a short-term
rating of at
least "P-1" from Moody's and (3) if applicable, has a long term
unsecured debt
rating of at least "A" and a short term rating of at least "F-1"
from Fitch,
(iii) a segregated trust account or accounts maintained with a
federal or state
chartered depository institution or trust company acting in its
fiduciary
capacity, which, in the case of a state chartered depository
institution or
trust company, is subject to regulations regarding fiduciary funds
on deposit
therein substantially similar to 12 C.F.R. 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 (iv)
any other
account the use of which would not, in and of itself, cause an
Adverse Rating
Event or a Westchester Related MBS Adverse Rating Event, as
confirmed in writing
by each Rating Agency. For purposes of the foregoing, the ratings
from Fitch
shall only be applicable with respect to an account that relates
solely to the
Westchester Loan Combination at any time one or more classes of the
Westchester
Pari Passu Non-Trust Loan Related MBS is rated by Fitch.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily
Guide or any
successor provisions covering the same subject matter in the case
of a Specially
Serviced Mortgage Loan as to which the related Mortgaged Property
is multifamily
property or (ii) the American Society for Testing and Materials in
the case of
Specially Serviced Mortgage Loan as to which the related Mortgaged
Property is
not multifamily property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
-32-
"Escrow Payment": Any payment received by the Master Servicer or
the
Special Servicer for the account of any Mortgagor for application
toward the
payment of real estate taxes, assessments, insurance premiums,
ground rents (if
applicable) and other similar items in respect of the related
Mortgaged
Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": Securities Exchange Act of 1934, as amended.
"Excess Servicing Strip": With respect to each Mortgage Loan and
REO
Loan, that portion of the Master Servicing Fee for such Mortgage
Loan or REO
Loan that represents interest accrued at the related Excess
Servicing Strip
Rate.
"Excess Servicing Strip Rate": With respect to each Mortgage Loan
and
REO Loan, the excess of (x) the Master Servicing Fee Rate for such
Mortgage Loan
or REO Loan over (y) the sum of (i) 0.01% (one basis point) per
annum, and (ii)
with respect to any Mortgage Loan or REO Loan that is not primary
serviced by
Midland, the primary servicing fee rate, if any, for such Mortgage
Loan or REO
Loan; provided that the Excess Servicing Strip Rate with respect to
each
Mortgage Loan and REO Loan shall be subject to reduction by the
Trustee pursuant
to Section 3.11(a).
"Excluded Class": Any Class of Sequential Pay Certificates other
than
the Class A-1, Class A-2, Class A-3, Class A-SB, Class A-4, Class
A-1A, Class
AM, Class AJ, Class B, Class C, Class D, Class E, Class F, Class G
and Class H
Certificates.
"Exemption": Either of Department of Labor Prohibited Transaction
Exemption ("PTE") 90-29 (as amended by PTE 97-34, PTE 2000-58 and
PTE 2002-41)
or PTE 2000-55 (as amended by PTE 2000-58 and PTE 2002-41), as each
may be
amended from time to time, or any successor thereto, all as issued
by the U.S.
Department of Labor.
"Exemption-Favored Party": Any of (i) MLPF&S or Countrywide
Securities, (ii) any Person directly or indirectly, through one or
more
intermediaries, controlling, controlled by or under common control
with MLPF&S
or Countrywide Securities, and (iii) any member of any underwriting
syndicate or
selling group of which any Person described in clauses (i) or (ii)
is a manager
or co-manager with respect to a Class of Investment Grade
Certificates.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Specially Serviced Mortgage Loan,
Corrected
Mortgage Loan or REO Property (other than a Mortgage Loan or REO
Property, as
the case may be, that was purchased or replaced by any of the
Mortgage Loan
Sellers pursuant to the applicable Mortgage Loan Purchase
Agreement, or that was
purchased by the Plurality Subordinate Certificateholder or the
Special Servicer
or any assignee of the foregoing pursuant to Section 3.18, by the
related
B-Noteholder (in the case of an A-Note Trust Mortgage Loan) or by a
Westchester
Subordinate Noteholder (in the case of the Westchester Mall Trust
Mortgage Loan)
pursuant to the related Loan Combination Intercreditor Agreement or
by the
Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder pursuant to Section 9.01)
-33-
that there has been a recovery of all Insurance Proceeds,
Liquidation Proceeds,
REO Revenues and other payments or recoveries that the Special
Servicer has
determined, in accordance with the Servicing Standard, will be
ultimately
recoverable (without regard to any Westchester Control Retention
Collateral).
"Fiscal Agent": A Person who is at any time appointed by the
Trustee
pursuant to Section 8.18 to act as fiscal agent.
"Fiscal Agent Agreement": As defined in Section 8.18.
"Fitch": Fitch, Inc. or its successor in interest. If neither Fitch
nor any successor remains in existence, "Fitch" shall be deemed to
refer to such
other nationally recognized statistical rating agency or other
comparable Person
that replaces it in such capacity under the Westchester Pari Passu
Non-Trust
Loan Securitization Agreement, and specific ratings of Fitch herein
referenced
shall be deemed to refer to the equivalent ratings of the party so
designated.
"FNMA": Federal National Mortgage Association or any successor.
"Form 8-K": Form 8-K under the Exchange Act and/or any successor or
equivalent form(s) adopted by the Securities and Exchange
Commission.
"Form 8-K Current Report": A current report on Form 8-K.
"Form 10-K": Form 10-K under the Exchange Act and/or any successor
or
equivalent form(s) adopted by the Securities and Exchange
Commission.
"Form 10-K Annual Report": An annual report on Form 10-K.
"Gain-on-Sale Proceeds": With respect to any Trust Mortgage Loan or
Trust REO Loan, the excess, if any, of (i) any and all Liquidation
Proceeds
collected with respect to such Mortgage Loan or the related REO
Property, as the
case may be, net of any related liquidation expenses, P&I
Advances, Servicing
Advances, Principal Recovery Fees, interest on Advances, Master
Servicing Fees,
Special Servicing Fees and Additional Trust Fund Expenses, and if
applicable,
further net of any portion of such Liquidation Proceeds payable to
the related
Non-Trust Noteholder(s) (if any), over (ii) the Purchase Price for
such Trust
Mortgage Loan or Trust REO Loan, as the case may be, on the date on
which such
Liquidation Proceeds were received.
"Gain-on-Sale Reserve Account": A segregated custodial account
(which
may be a sub-account of the Distribution Account) created and
maintained by the
Trustee pursuant to Section 3.04(f) in trust for the
Certificateholders, which
shall be entitled "Wells Fargo Bank, N.A., as Trustee, in trust for
the
registered holders of Merrill Lynch Mortgage Trust 2005-MCP1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MCP1, Gain-on-Sale
Reserve
Account".
"Global Certificate": With respect to any Class of Book-Entry
Non-Registered Certificates, the related Rule 144A Global
Certificate.
"Grantor Trust E": That certain "grantor trust" (within the meaning
of
the Grantor Trust Provisions), the assets of which consist of the
Excess
Servicing Strip with respect to the Mortgage Loans
-34-
and any successor REO Loans and amounts held from time to time in
the Collection
Account that represent the Excess Servicing Strip.
"Grantor Trust E Assets": The segregated pool of assets of Grantor
Trust E.
"Grantor Trust Provisions": Subpart E of Subchapter J of the Code.
"Grantor Trust Z": That certain "grantor trust" (within the meaning
of
the Grantor Trust Provisions), the assets of which consist of any
Additional
Interest with respect to the Trust ARD Loans and any successor
Trust REO Loans
after their respective Anticipated Repayment Dates and amounts held
from time to
time in the Collection Account and/or the Additional Interest
Account that
represent Additional Interest.
"Grantor Trust Z Assets": The segregated pool of assets of Grantor
Trust Z.
"Ground Lease": With respect to any Mortgage Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged
Property or space
lease within such Mortgaged Property, the lease agreement creating
such
leasehold interest.
"Group 1 Mortgage Loan": Any Trust Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Trust Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants,
chemicals, wastes, or substances, including, without limitation,
those so
identified pursuant to CERCLA or any other federal, state or local
environmental
related laws and regulations now existing or hereafter enacted, and
specifically
including, without limitation, asbestos and asbestos-containing
materials,
polychlorinated biphenyls ("PCBs"), radon gas, petroleum and
petroleum products
and urea formaldehyde.
"Hilton Garden Inn - Boca Raton A-Note Trust Mortgage Loan": The
A-Note Trust Mortgage Loan identified as loan number 48 on the
Mortgage Loan
Schedule and as being secured by the Hilton Garden Inn - Boca
Raton.
"Hilton Garden Inn - Boca Raton B-Note Non-Trust Loan": The B-Note
Non-Trust Loan that relates to the Hilton Garden Inn - Boca Raton
A-Note Trust
Mortgage Loan.
"Hilton Garden Inn - Fairfax A-Note Trust Mortgage Loan": The
A-Note
Trust Mortgage Loan identified as loan number 23 on the Mortgage
Loan Schedule
and as being secured by the Hilton Garden Inn - Fairfax.
"Hilton Garden Inn - Fairfax B-Note Non-Trust Loan": The B-Note
Non-Trust Loan that relates to the Hilton Garden Inn - Fairfax
A-Note Trust
Mortgage Loan.
-35-
"Hilton Garden Inn - Miramar A-Note Trust Mortgage Loan": The
A-Note
Trust Mortgage Loan identified as loan number 51 on the Mortgage
Loan Schedule
and as being secured by the Hilton Garden Inn - Miramar.
"Hilton Garden Inn - Miramar B-Note Non-Trust Loan": The B-Note
Non-Trust Loan that relates to the Hilton Garden Inn - Miramar
A-Note Trust
Mortgage Loan.
"Holder": A Certificateholder.
"Impound Reserve": As defined in Section 3.16(c).
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the
Mortgage Loan
Sellers, the Master Servicer, the Special Servicer, the Controlling
Class
Representative, the Trustee, any Fiscal Agent and any and all
Affiliates thereof
(and, with respect to any Loan Combination, any of the related
Non-Trust
Noteholder(s) and any and all Affiliates thereof), (ii) does not
have any direct
financial interest in or any material indirect financial interest
in any of the
Depositor, the Mortgage Loan Sellers, the Master Servicer, the
Special Servicer,
the Controlling Class Representative, the Trustee, any Fiscal Agent
or any
Affiliate thereof (or, with respect to any Loan Combination, any of
the related
Non-Trust Noteholder(s) or any Affiliate thereof), and (iii) is not
connected
with the Depositor, the Mortgage Loan Sellers, the Master Servicer,
the
Controlling Class Representative, the Special Servicer, the
Trustee, any Fiscal
Agent or any Affiliate thereof (or, with respect to any Loan
Combination, any of
the related Non-Trust Noteholder(s) or any Affiliate thereof) as an
officer,
employee, promoter, underwriter, trustee, partner, director or
Person performing
similar functions; provided, however, that a Person shall not fail
to be
Independent of the Depositor, any Mortgage Loan Seller, the Master
Servicer, the
Controlling Class Representative, the Special Servicer, the
Trustee, any Fiscal
Agent or any Affiliate thereof (or, with respect to any Loan
Combination, any of
the related Non-Trust Noteholder(s) or any Affiliate thereof)
merely because
such Person is the beneficial owner of 1% or less of any class of
securities
issued by the Depositor, any Mortgage Loan Seller, the Master
Servicer, the
Special Servicer, the Controlling Class Representative, the
Trustee, any Fiscal
Agent or any Affiliate thereof (or, with respect to any Loan
Combination, any of
the related Non-Trust Noteholder(s) or any Affiliate thereof), as
the case may
be.
"Independent Appraiser": An Independent professional real estate
appraiser who is a member in good standing of the Appraisal
Institute, and, if
the State in which the subject Mortgaged Property is located
certifies or
licenses appraisers, certified or licensed in such State, and in
each such case,
who has a minimum of five years experience in the subject property
type and
market.
"Independent Contractor": (a) Any Person that would be an
"independent
contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of
the Code if REMIC I were a real estate investment trust (except
that the
ownership test set forth in that Section shall be considered to be
met by any
Person that owns, directly or indirectly, 35% or more of any Class
of
Certificates, or such other interest in any Class of Certificates
as is set
forth in an Opinion of Counsel, which shall be at no expense to the
Master
Servicer, the Special Servicer, the Trustee, any Fiscal Agent or
the Trust Fund,
delivered to the Trustee (and, if a Loan Combination is involved,
to the related
Non-Trust Noteholder), provided that (i) such REMIC does not
receive or derive
any income from such Person and (ii) the 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,
-36-
which shall be at no expense to the Master Servicer, the Special
Servicer, the
Trustee, any Fiscal Agent or the Trust Fund, to the effect that the
taking of
any action in respect of any REO Property by such Person, subject
to any
conditions therein specified, that is otherwise herein contemplated
to be taken
by an Independent Contractor will not cause such REO Property to
cease to
qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of
the Code for purposes of Section 860D(a) of the Code, or cause any
income
realized in respect of such REO Property to fail to qualify as
Rents from Real
Property, due to such Person's failure to be treated as an
Independent
Contractor.
"Initial Purchaser": Each of MLPF&S and Countrywide Securities.
"Institutional Accredited Investor" or "IAI": An "accredited
investor"
as defined in any of paragraphs (1), (2), (3) and (7) of Rule
501(a) under the
Securities Act or any entity in which all of the equity owners come
within such
paragraphs.
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other
insurance policy
that is maintained from time to time in respect of such Mortgage
Loan or the
related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the
extent such proceeds are not applied to the restoration of the
related Mortgaged
Property, released to the Mortgagor, or any tenants or ground
lessors, as the
case may be, pursuant to the terms of the related Mortgage or
lease, in
accordance with the Servicing Standard.
"Insured Environmental Event": As defined in Section 3.07(d).
"Interest Accrual Period": With respect to any Distribution Date,
the
calendar month immediately preceding the calendar month in which
such
Distribution Date occurs.
"Interest Reserve Account": The segregated account (which may be a
sub-account of the Distribution Account) created and maintained by
the Trustee
pursuant to Section 3.04(c) in trust for Certificateholders, which
shall be
entitled "Wells Fargo Bank, N.A., as Trustee, on behalf of and in
trust for the
registered holders of Merrill Lynch Mortgage Trust 2005-MCP1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MCP1".
"Interest Reserve Amount": With respect to each Interest Reserve
Loan
and each Distribution Date that occurs in February of each year
subsequent to
2005 and in January of each year subsequent to 2005 that is not a
leap year, an
amount equal to one day's interest at the related Net Mortgage Rate
on the
related Stated Principal Balance as of the Due Date in the month in
which such
Distribution Date occurs (but prior to the application of any
amounts owed on
such Due Date), to the extent a Periodic Payment or P&I Advance
is made in
respect thereof for such Due Date as of the related P&I Advance
Date, in the
case of a Periodic Payment, or as of the related Distribution Date,
in the case
of a P&I Advance.
"Interest Reserve Loan": Each Trust Mortgage Loan that is an
Actual/360 Mortgage Loan and each Trust REO Loan that relates to an
Actual/360
Mortgage Loan.
-37-
"Interested Person": The Depositor, the Mortgage Loan Seller, the
Master Servicer, the Special Servicer, any Independent Contractor
hired by the
Special Servicer, any related Non-Trust Noteholder, any Holder of a
Certificate
or any Affiliate of any such Person.
"Internet Website": Either the Internet website maintained by the
Trustee (located at "www.ctslink.com/cmbs" or such other address as
provided to
the parties hereto from time to time) or the Internet website
maintained by the
Master Servicer, as the case may be.
"Investment Account": As defined in Section 3.06(a).
"Investment Grade Certificate": As of any date of determination, a
Certificate that is rated in one of the four highest generic rating
categories
by at least one Rating Agency.
"Investment Period": With respect to any Distribution Date and (i)
each of the Collection Account, any Servicing Account, any Reserve
Account, any
REO Account and any Loan Combination Custodial Account, the related
Collection
Period and (ii) each of the Distribution Account, the Interest
Reserve Account,
the Additional Interest Account and the Gain-on-Sale Reserve
Account, the
related Trustee Investment Period.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, other than Penalty
Interest,
whether as payments, Insurance Proceeds, Liquidation Proceeds or
otherwise,
which represent late collections of the principal and/or interest
portions of a
Scheduled Payment (other than a Balloon Payment) or an Assumed
Periodic Payment
in respect of such Mortgage Loan due or deemed due on a Due Date in
a previous
Collection Period, and not previously recovered. With respect to
any REO Loan,
all amounts received in connection with the related REO Property
during any
Collection Period, other than Penalty Interest, whether as
Insurance Proceeds,
Liquidation Proceeds, REO Revenues or otherwise, which represent
late
collections of the principal and/or interest portions of a
Scheduled Payment
(other than a Balloon Payment) or an Assumed Periodic Payment in
respect of the
predecessor Mortgage Loan or of an Assumed Periodic Payment in
respect of such
REO Loan due or deemed due on a Due Date in a previous Collection
Period and not
previously recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a
Final Recovery
Determination is made with respect to such Mortgage Loan; (iii)
such Mortgage
Loan is repurchased or replaced by a Mortgage Loan Seller pursuant
to the
applicable Mortgage Loan Purchase Agreement; (iv) such Mortgage
Loan is
purchased by the Plurality Subordinate Certificateholder, the
Special Servicer
or any assignee thereof pursuant to Section 3.18 or by the Master
Servicer, the
Special Servicer or the Plurality Subordinate Certificateholder
pursuant to
Section 9.01; (v) in the case of an A-Note Trust Mortgage Loan or
the
Westchester Trust Mortgage Loan, such Mortgage Loan is purchased by
the related
B-Noteholder (in the case of an A-Note Trust Mortgage Loan) or by
the
Westchester Pari Passu Noteholder or a Westchester Subordinate
Noteholder (in
the case of the Westchester Trust Mortgage Loan) pursuant to the
related Loan
Combination Intercreditor Agreement; (vi) such Mortgage Loan is
purchased by a
mezzanine lender pursuant to the related mezzanine intercreditor
agreement; or
(vii) such Mortgage Loan is removed from the Trust by the Sole
Certificate Owner
in connection with an exchange of all of the outstanding
Certificates owned by
the Sole Certificate Owner for all of the Trust Mortgage Loans and
each REO
Property remaining in the Trust Fund pursuant to Section 9.01. With
respect to
any REO Property (and the related REO Loan), any of the following
events: (i) a
Final Recovery Determination is
-38-
made with respect to such REO Property; (ii) such REO Property is
purchased or
replaced by a Mortgage Loan Seller pursuant to the applicable
Mortgage Loan
Purchase Agreement; (iii) such REO Property is purchased by the
Master Servicer,
the Special Servicer or the Plurality Subordinate Certificateholder
pursuant to
Section 9.01; or (iv) such REO Property is removed from the Trust
Fund by the
Sole Certificate Owner in connection with an exchange of all of the
outstanding
Certificates owned by the Sole Certificate Owner for all of the
Trust Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to
Section
9.01.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the
Special
Servicer in connection with: (i) the taking of all or a part of a
Mortgaged
Property or REO Property by exercise of the power of eminent domain
or
condemnation, subject, however, to the rights of any tenants and
ground lessors,
as the case may be, and the rights of the Mortgagor under the terms
of the
related Mortgage; (ii) the liquidation of a Mortgaged Property or
other
collateral constituting security for a defaulted Mortgage Loan,
through
trustee's sale, foreclosure sale, REO Disposition or otherwise,
exclusive of any
portion thereof required to be released to the related Mortgagor in
accordance
with applicable law and the terms and conditions of the related
Mortgage Note
and Mortgage; (iii) the realization upon any deficiency judgment
obtained
against a Mortgagor; (iv) the purchase of a Trust Defaulted
Mortgage Loan by the
Plurality Subordinate Certificateholder, the Special Servicer or
any assignee
thereof pursuant to Section 3.18; (v) the repurchase or
substitution of a Trust
Mortgage Loan or REO Property by a Mortgage Loan Seller, pursuant
to the
applicable Mortgage Loan Purchase Agreement; (vi) the purchase of a
Trust
Mortgage Loan or REO Property by the Master Servicer, the Special
Servicer, or
the Plurality Subordinate Certificateholder pursuant to Section
9.01; (vii) the
purchase of an A-Note Trust Mortgage Loan by the related
B-Noteholder or the
purchase of the Westchester Trust Mortgage Loan by the Westchester
Pari Passu
Noteholder or a Westchester Subordinate Noteholder, in each case
pursuant to the
related Loan Combination Intercreditor Agreement; (viii) the
purchase of a
Mortgage Loan by a mezzanine lender pursuant to the related
mezzanine
intercreditor agreement; (ix) the removal of a Mortgage Loan or REO
Property
from the Trust Fund by the Sole Certificate Owner in connection
with an exchange
of all of the outstanding Certificates owned by the Sole
Certificate Owner for
all of the Trust Mortgage Loans and each REO Property remaining in
the Trust
Fund pursuant to Section 9.01; or (x) except for purposes of
Section 3.11, any
Westchester Control Retention Collateral transferred to the related
Loan
Combination Custodial Account, subject to and in accordance with
the terms of
Section 6.12(h), to cover losses and expenses with respect to the
Westchester
Loan Combination.
"Loan Combination": Any A/B Loan Combination or the Westchester
Loan
Combination, as the case may be. The term "Loan Combination" shall
include any
successor REO Loans with respect to the applicable Mortgage Loans
comprising
such Loan Combination.
"Loan Combination Custodial Account": With respect to any Loan
Combination, the separate account (which may be a sub-account of
the Collection
Account) created and maintained by the Master Servicer pursuant to
Section
3.04(h) and held on behalf of the Certificateholders and the
related Non-Trust
Noteholder, which shall be entitled substantially as follows:
"Midland Loan
Services, Inc., as Master Servicer for Wells Fargo Bank, N.A., as
Trustee, on
behalf of and in trust for the registered holders of Merrill Lynch
Mortgage
Trust 2005-MCP1, Commercial Mortgage Pass-Through Certificates,
Series
2005-MCP1, and [name of the related Non-Trust Noteholder(s)], as
their interests
may appear". Any such account shall be an Eligible Account.
-39-
"Loan Combination Intercreditor Agreement": With respect to each
Loan
Combination, each intercreditor agreement (including the
Westchester
Intercreditor Agreement) in effect between (i) the Trust Fund as
holder of the
related Trust Mortgage Loan and (ii) the Non-Trust Noteholder(s).
"Loan Combination Mortgaged Property": The Mortgaged Property
securing
a Loan Combination.
"Loan Combination REO Account": With respect to each Loan
Combination,
a segregated account or accounts created and maintained by the
Special Servicer
pursuant to Section 3.16 on behalf of the Trustee, in trust for the
Certificateholders, and the related Non-Trust Noteholder, which
shall be
entitled "Midland Loan Services, Inc., as Special Servicer for
Wells Fargo Bank,
N.A., as Trustee in trust for registered holders of Merrill Lynch
Mortgage Trust
2005-MCP1, Commercial Mortgage Pass-Through Certificates, Series
2005-MCP1, and
[name of the related Non-Trust Noteholder(s)], as their interests
may appear".
"Loan Combination REO Property": With respect to each Loan
Combination, the related Mortgaged Property if such Mortgaged
Property is
acquired on behalf and in the name of the Trust Fund, for the
benefit of the
Certificateholders, and the related Non-Trust Noteholder, as their
interests may
appear, through foreclosure, acceptance of a deed-in-lieu of
foreclosure or
otherwise in accordance with applicable law in connection with the
default or
imminent default of such Loan Combination.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Trust Mortgage Loans that
are
Group 1 Mortgage Loans and any successor Trust REO Loans with
respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available
Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal
Distribution Amount
attributable to the Trust Mortgage Loans and Trust REO Loans
belonging to Loan
Group 1, taking into account adjustments in accordance with Section
1.02.
"Loan Group 2": Collectively, all of the Trust Mortgage Loans that
are
Group 2 Mortgage Loans and any successor Trust REO Loans with
respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available
Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal
Distribution Amount
attributable to the Trust Mortgage Loans and Trust REO Loans
belonging to Loan
Group 2, taking into account adjustments in accordance with Section
1.02.
"Loan-to-Value Ratio": With respect to any Trust Mortgage Loan, as
of
any date of determination, a fraction, expressed as a percentage,
the numerator
of which is (i) the then current principal amount of such Trust
Mortgage Loan or
(ii) in the case of the Westchester Trust
-40-
Mortgage Loan, the then aggregate current principal amount of the
Westchester
Trust Mortgage Loan and the Westchester Pari Passu Non-Trust Loan,
in each case
as adjusted in accordance with the considerations specified in
Section
3.08(a)(i), and the denominator of which is the Appraised Value of
the related
Mortgaged Property.
"Master Servicer": Midland Loan Services, Inc., its successor in
interest, or any successor master servicer appointed as herein
provided.
"Master Servicing Fee": With respect to each Mortgage Loan and each
REO Loan, the fee payable to the Master Servicer pursuant to
Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Trust Mortgage
Loan,
the per annum rate equal to the sum of the rates set forth under
the columns
"Master Servicing Fee Rate" and "Primary Servicing Fee Rate" on the
Mortgage
Loan Schedule, and with respect to each Non-Trust Loan, or any
successor REO
Loan with respect thereto, the per annum rate at which any related
Master
Servicing Fee is permitted to be calculated under the related Loan
Combination
Intercreditor Agreement.
"Merrill Mortgage Loan Purchase Agreement": That certain mortgage
loan
purchase agreement, dated as of June 21, 2005, between the
Depositor and MLMLI
and relating to the transfer of the Merrill Trust Mortgage Loans to
the
Depositor.
"Merrill Trust Mortgage Loans": Each of the Trust Mortgage Loans
transferred and assigned to the Depositor pursuant to the Merrill
Mortgage Loan
Purchase Agreement.
"Midland": Midland Loan Services, Inc. or its successor in
interest.
"MLMLI": Merrill Lynch Mortgage Lending, Inc. or its successor in
interest.
"MLPF&S": Merrill Lynch, Pierce, Fenner & Smith
Incorporated, a
Delaware corporation, or its successor in interest.
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If neither such Rating Agency nor any successor remains
in existence,
"Moody's" shall be deemed to refer to such other nationally
recognized
statistical rating agency or other comparable Person designated by
the
Depositor, notice of which designation shall be given to the
Trustee, the Master
Servicer and the Special Servicer, and specific ratings of Moody's
herein
referenced shall be deemed to refer to the equivalent ratings of
the party so
designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed
of
trust, deed to secure debt or similar instrument that secures the
Mortgage Note
and creates a lien on the fee or leasehold interest in the related
Mortgaged
Property.
"Mortgage File": With respect to any Trust Mortgage Loan and, in
the
case of each Trust Mortgage Loan that is part of a Loan
Combination, also with
respect to the related Non-Trust Loan(s), collectively the
following documents
(which, in the case of a Loan Combination, except for the Mortgage
Notes
referred to in clause (i) of this definition and any modifications
thereof
referred to in clause (vi) of this definition, relate to the entire
Loan
Combination):
-41-
(i) the original executed Mortgage Note for such Trust Mortgage
Loan,
including any power of attorney related to the execution thereof
(or a lost
note affidavit and indemnity with a copy of such Mortgage Note
attached
thereto), together with any and all intervening endorsements
thereon,
endorsed on its face or by allonge attached thereto (without
recourse,
representation or warranty, express or implied) to the order of
Wells Fargo
Bank, N.A., as trustee for the registered holders of Merrill Lynch
Mortgage
Trust 2005-MCP1, Commercial Mortgage Pass-Through Certificates,
Series
2005-MCP1, or in blank, and (B) in the case of a Loan Combination,
a copy
of the executed Mortgage Note for each related Non-Trust Loan;
(ii) an original or a copy of the Mortgage, together with originals
or
copies of any and all intervening assignments thereof, in each case
(unless
not yet returned by the applicable recording office) with evidence
of
recording indicated thereon or certified by the applicable
recording
office;
(iii) an original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments thereof,
in each
case (unless not yet returned by the applicable recording office)
with
evidence of recording indicated thereon or certified by the
applicable
recording office;
(iv) an original executed assignment, in recordable form (except
for
completion of the assignee's name, if the assignment is delivered
in blank,
and any missing recording information) or a certified copy of that
assignment as sent for recording, of (A) the Mortgage, (B) any
related
Assignment of Leases (if such item is a document separate from the
Mortgage) and (C) any other recorded document relating to the
Mortgage Loan
otherwise included in the Mortgage File, in favor of Wells Fargo
Bank,
N.A., as trustee for the registered holders of Merrill Lynch
Mortgage Trust
2005-MCP1, Commercial Mortgage Pass-Through Certificates, Series
2005-MCP1
(or, in the case of a Loan Combination, in favor of Wells Fargo
Bank, N.A.,
as trustee for the registered holders of Merrill Lynch Mortgage
Trust
2005-MCP1, Commercial Mortgage Pass-Through Certificates, Series
2005-MCP1,
and in its capacity as lead lender on behalf of the holder of the
related
Non-Trust Loan(s)), or in blank;
(v) an original assignment of all unrecorded documents relating to
the
subject Trust Mortgage Loan (to the extent not already assigned
pursuant to
clause (iv) above), in favor of Wells Fargo Bank, N.A., as trustee
for the
registered holders of Merrill Lynch Mortgage Trust 2005-MCP1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MCP1 (or, in the
case of a
Loan Combination, in favor of Wells Fargo Bank, N.A., as trustee
for the
registered holders of Merrill Lynch Mortgage Trust 2005-MCP1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MCP1, and in its
capacity
as lead lender on behalf of the holder of the related Non-Trust
Loan(s)),
or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where
the terms
or provisions of the Mortgage or Mortgage Note have been
consolidated or
modified or the subject Trust Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's
title insurance or, if such policy has not been issued or located,
an
original or a copy of an irrevocable, binding
-42-
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 Mortgage
Loan or in
favor of any assignee prior to the Trustee (but only to the extent
the
Mortgage Loan Seller had possession of such UCC Financing
Statements prior
to the Closing Date) and, if there is an effective UCC Financing
Statement
in favor of the Mortgage Loan Seller on record with the applicable
public
office for UCC Financing Statements, a UCC Financing Statement
assignment,
in form suitable for filing in favor of Wells Fargo Bank, N.A., as
trustee
for the registered holders of Merrill Lynch Mortgage Trust
2005-MCP1,
Commercial Mortgage Pass-Through Certificates, Series 2005-MCP1, as
assignee (or, in the case of a Loan Combination, in favor of Wells
Fargo
Bank, N.A., as trustee for the registered holders of Merrill Lynch
Mortgage
Trust 2005-MCP1, Commercial Mortgage Pass-Through Certificates,
Series
2005-MCP1, and in its capacity as lead lender on behalf of the
holder of
the related Non-Trust Loan(s)), or in blank;
(ix) an original or a copy of any Ground Lease, guaranty or ground
lessor estoppel;
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor (including, in the case of a Trust Mortgage Loan that is
part of
a Loan Combination, any related Loan Combination Intercreditor
Agreement)
and any intercreditor agreement relating to mezzanine debt related
to the
Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow or
reserve agreement, any security agreement, any management
agreement, any
agreed upon procedures letter, any lockbox or cash management
agreements,
any environmental reports or any letter of credit (which letter of
credit
shall not be delivered in original form to the Trustee but rather
to the
Master Servicer), in each case relating to such Mortgage Loan; and
(xii) with respect to a 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.
-43-
"Mortgage Loan Purchase Agreement": Any of the Countrywide Mortgage
Loan Purchase Agreement, the Merrill Mortgage Loan Purchase
Agreement and the
PNC Mortgage Loan Purchase Agreement.
"Mortgage Loan Schedule": The list of Trust Mortgage Loans
transferred
on the Closing Date to the Trustee as part of REMIC I,
respectively, attached
hereto as Exhibit B and in a computer readable format. Such list
shall set forth
the following information with respect to each Trust Mortgage Loan:
(i)
the loan identification number (as specified in Annex A-1 to the
Prospectus);
(ii) the street address (including city, county, state and zip
code)
and name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Periodic Payment due on the first Due Date
following the Closing Date;
(v)
the Net Mortgage Rate as of the Cut-off Date and the original
Mortgage Rate;
(vi) the (A) original term to stated maturity, (B) remaining term
to
stated maturity and (C) Stated Maturity Date;
(vii) the original and remaining amortization term;
(viii) whether the Trust Mortgage Loan is secured by a Ground
Lease;
(ix) the Master Servicing Fee Rate;
(x)
whether such Trust Mortgage Loan is an ARD Loan and if so the
Anticipated Repayment Date and Additional Interest Rate for such
ARD Loan;
(xi) the related Mortgage Loan Seller and, if different, the
related
originator;
(xii) whether such Trust Mortgage Loan is insured by an
environmental
policy;
(xiii) whether such Trust Mortgage Loan is cross-defaulted or
cross-collateralized with any other Trust Mortgage Loan;
(xiv) whether such Trust Mortgage Loan is a Defeasance Loan;
(xv) whether the Trust Mortgage Loan is secured by a letter of
credit;
(xvi) whether payments on such Trust Mortgage Loan are made to a
lock-box;
(xvii) the amount of any Reserve Funds escrowed in respect of each
Trust Mortgage Loan;
-44-
(xviii) the number of days of any grace period permitted in respect
of
any Periodic Payment due under such Trust Mortgage Loan;
(xix) the property type of the related Mortgaged Property as
reported
in the rent roll;
(xx) the original principal balance of such Trust Mortgage Loan;
(xxi) the interest accrual basis of such Trust Mortgage Loan;
(xxii)
the primary servicing fee rate, if any, for such Trust Mortgage
Loan; and
(xxiii) the applicable Loan Group to which the Trust Mortgage Loan
belongs.
"Mortgage Loan Seller": MLMLI, Countrywide or PNC.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with
any rider,
addendum or amendment thereto, or any renewal, substitution or
replacement of
such note.
"Mortgage Pool": Collectively, all of the Trust Mortgage Loans and
any
successor Trust REO Loans. The Non-Trust Loans shall not constitute
part of the
Mortgage Pool.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or prior
to
its Stated Maturity Date, the fixed annualized rate, not including
any
Additional Interest Rate, at which interest is scheduled (in the
absence of a
default) to accrue on such Mortgage Loan from time to time in
accordance with
the related Mortgage Note and applicable law; (ii) any Mortgage
Loan after its
Stated Maturity Date, the annualized rate described in clause (i)
above
determined without regard to the passage of such Stated Maturity
Date, but
giving effect to any modification thereof as contemplated by
Section 3.20; and
(iii) any REO Loan, the annualized rate described in clause (i) or
(ii), as
applicable, above determined as if the predecessor Mortgage Loan
had remained
outstanding.
"Mortgaged Property": The property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has not signed the related
Mortgage Note but
owns an interest in the related Mortgaged Property, which interest
has been
encumbered to secure such Mortgage Loan, and any Person that has
acquired the
related Mortgaged Property and assumed the obligations of the
original obligor
under the Mortgage Note, but excluding guarantors that do not own
the related
Mortgaged Property.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate
of all
Prepayment Interest Shortfalls incurred in connection with the
receipt of
Principal Prepayments on the Trust Mortgage Loans during the
related Collection
Period, exceeds (b) the aggregate amount deposited by the Master
Servicer in the
Collection Account for such Distribution Date pursuant to Section
3.19(a) in
connection with such Prepayment Interest Shortfalls on the Trust
Mortgage Loans.
"Net Investment Earnings": With respect to each of the Collection
Account, the Interest Reserve Account, any Servicing Account, any
Reserve
Account, any REO Account, the Distribution
-45-
Account, any Loan Combination Custodial Account, the Additional
Interest Account
and the Gain-on-Sale Reserve Account, for any Investment Period,
the amount, if
any, by which the aggregate of all interest and other income
realized during
such Investment Period on funds held in such account, exceeds the
aggregate of
all losses, if any, incurred during such Investment Period in
connection with
the investment of such funds in accordance with Section 3.06 (other
than losses
of what would have otherwise constituted interest or other income
earned on such
funds).
"Net Investment Loss": With respect to each of the Collection
Account,
any Servicing Account, any Reserve Account, any REO Account, the
Distribution
Account, any Loan Combination Custodial Account, the Interest
Reserve Account,
the Additional Interest Account, and the Gain-on-Sale Reserve
Account, for any
Investment Period, the amount by which the aggregate of all losses,
if any,
incurred during such Investment Period in connection with the
investment of
funds held in such account in accordance with Section 3.06 (other
than losses of
what would have otherwise constituted interest or other income
earned on such
funds), exceeds the aggregate of all interest and other income
realized during
such Investment Period on such funds.
"Net Mortgage Pass-Through Rate":
(A) With respect to any Trust Mortgage Loan (or any successor Trust
REO Loan with respect thereto) that accrues (or is deemed to
accrue)
interest on a 30/360 Basis, for any Distribution Date, an annual
rate equal
to the Net Mortgage Rate for such Trust Mortgage Loan as of the
Closing
Date (without regard to any modification, waiver or amendment of
the terms
of such Trust Mortgage Loan subsequent to the Closing Date); and
(B) With respect to any Trust Mortgage Loan (or any successor Trust
REO Loan with respect thereto) that accrues interest on an
Actual/360
Basis, for any Distribution Date, an annual rate equal to twelve
times a
fraction, expressed as a percentage:
(1)
the numerator of which fraction is, subject to adjustment as
described below in this definition, an amount of interest
equal to the product of (a) the number of days in the
Interest Accrual Period for such Distribution Date,
multiplied by (b) the Stated Principal Balance of such Trust
Mortgage Loan (or such Trust REO Loan) immediately preceding
such Distribution Date, multiplied by (c) 1/360, multiplied
by (d) the Net Mortgage Rate for such Trust Mortgage Loan as
of the Closing Date (without regard to any modification,
waiver or amendment of the terms of such Trust Mortgage Loan
subsequent to the Closing Date); and
(2)
the denominator of which fraction is the Stated Principal
Balance of such Trust Mortgage Loan (or such Trust REO Loan)
immediately preceding that Distribution Date.
Notwithstanding the foregoing, if the subject Distribution Date
occurs
during January, except during a leap year, or February of any year
subsequent to
2005, then the amount of interest referred to in the fractional
numerator
described in clause (B)(1) above will be decreased to reflect any
Interest
Reserve Amounts with respect to the subject Trust Mortgage Loan (or
Trust REO
Loan) transferred from the Distribution Account to the Interest
Reserve Account
in such calendar month. Furthermore, if the subject Distribution
Date occurs
during March of any year subsequent to 2005, then
-46-
the amount of interest referred to in the fractional numerator
described in
clause (B)(1) above will be increased to reflect any Interest
Reserve Amounts
with respect to the subject Trust Mortgage Loan (or Trust REO Loan)
transferred
from the Interest Reserve Account to the Distribution Account for
distribution
on such Distribution Date.
"Net Mortgage Rate": With respect to any Trust Mortgage Loan or any
Trust REO Loan, as of any date of determination, a rate per annum
equal to the
related Mortgage Rate minus the sum of the Trustee Fee Rate and the
applicable
Master Servicing Fee Rate; and with respect to any Non-Trust Loan
or any
successor REO Loan with respect thereto, the related Mortgage Rate
minus the
applicable Master Servicing Fee Rate.
"Net Operating Income" or "NOI": With respect to any Mortgaged
Property, for any twelve-month period, the total operating revenues
derived from
such Mortgaged Property during such period, minus the total
operating expenses
incurred in respect of such Mortgaged Property during such period,
other than
(i) non-cash items such as depreciation, (ii) amortization, (iii)
actual capital
expenditures and (iv) debt service on the related Mortgage Loan.
"New Lease": Any lease of REO Property entered into at the
direction
of the Special Servicer, including any lease renewed, modified or
extended on
behalf of the Trustee for the benefit of the Certificateholders
and, in the case
of a Loan Combination, the related Non-Trust Noteholder(s).
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance
(including
any Workout-Delayed Reimbursement Amount that subsequently becomes
a
Nonrecoverable P&I Advance) or Nonrecoverable Servicing Advance
(including any
Workout-Delayed Reimbursement Amount that subsequently becomes a
Nonrecoverable
Servicing Advance).
"Nonrecoverable P&I Advance": Any P&I Advance previously
made or
proposed to be made, including any previously made P&I Advance
that constitutes
a Workout-Delayed Reimbursement Amount, in respect of any Trust
Mortgage Loan or
Trust REO Loan by the Master Servicer, the Trustee or any Fiscal
Agent, as the
case may be, that, as determined by the Master Servicer, the
Special Servicer,
the Trustee or any Fiscal Agent, as applicable, in accordance with
the Servicing
Standard with respect to such P&I Advance (together with any
accrued and unpaid
interest thereon), will not be ultimately recoverable from Late
Collections, REO
Revenues, Insurance Proceeds or Liquidation Proceeds, or any other
recovery on
or with respect to such Trust Mortgage Loan or Trust REO Loan (or,
in the case
of a Trust Mortgage Loan that is a part of a Loan Combination, on
or with
respect to the related Loan Combination); provided, however, the
Special
Servicer may, at its option, make a determination (which shall be
binding upon
the Master Servicer, the Trustee and any Fiscal Agent) in
accordance with the
Servicing Standard, that any P&I Advance previously made or
proposed to be made,
or any Workout-Delayed Reimbursement Amount previously made, by the
Master
Servicer, the Trustee or any Fiscal Agent is a Nonrecoverable
P&I Advance and
shall deliver notice of such determination to the Master Servicer,
the Trustee
and any Fiscal Agent. In making a recoverability determination, the
applicable
Person will be entitled to consider (among other things) the
obligations of the
Mortgagor under the terms of the related Mortgage Loan as it may
have been
modified, to consider (among other things) the related Mortgaged
Properties in
their "as is" or then current conditions and occupancies, as
modified by such
Person's assumptions (consistent with the Servicing Standard)
regarding the
possibility and effects of future adverse change with respect to
such Mortgaged
Properties, to estimate and consider (among other things) future
expenses, to
estimate and consider (consistent with the Servicing Standard)
(among other
-47-
things) the timing of recoveries, and to consider the existence and
amount of
any outstanding Nonrecoverable Advances the reimbursement of which
is being
deferred pursuant to Section 4.03(f), any outstanding Workout
Delayed
Reimbursement Amounts and any Unliquidated Advances. In addition,
any such
Person may update or change its recoverability determinations at
any time and,
consistent with the Servicing Standard, may obtain from the Special
Servicer any
reasonably required analysis, Appraisals or market value estimates
or other
information in the Special Servicer's possession for such purposes.
Absent bad
faith, the Master Servicer's, the Special Servicer's, the Trustee's
or any
Fiscal Agent's determination as to the recoverability of any
P&I Advance shall
be conclusive and binding on the Certificateholders. The Trustee
and any Fiscal
Agent shall be entitled to conclusively rely on any recoverability
determination
made by the Master Servicer and the Master Servicer, the Trustee
and any Fiscal
Agent shall be entitled to conclusively rely on any recoverability
determination
made by the Special Servicer and shall be required to act in
accordance with
such determination.
"Nonrecoverable Servicing Advance": Any Servicing Advance
previously
made or proposed to be made, including any previously made
Servicing Advance
that constitutes a Workout-Delayed Reimbursement Amount, in respect
of a
Mortgage Loan or REO Loan by the Master Servicer, the Special
Servicer, the
Trustee or any Fiscal Agent, as the case may be, that, as
determined by the
Master Servicer, the Special Servicer, the Trustee or any Fiscal
Agent, as
applicable, in accordance with the Servicing Standard (together
with any accrued
and unpaid interest thereon), will not be ultimately recoverable
from Late
Collections, REO Revenues, Insurance Proceeds, Liquidation
Proceeds, or any
other recovery on or in respect of such Mortgage Loan or the
related REO
Property; provided, however, the Special Servicer may, at its
option, make a
determination (which shall be binding upon the Master Servicer, the
Trustee and
any Fiscal Agent) in accordance with the Servicing Standard, that
any Servicing
Advance previously made or proposed to be made, or any
Workout-Delayed
Reimbursement Amount previously made, by the Master Servicer, the
Trustee or any
Fiscal Agent is a Nonrecoverable Servicing Advance and shall
deliver notice of
such determination to the Master Servicer, the Trustee and any
Fiscal Agent. In
making such recoverability determination, such Person will be
entitled to
consider (among other things) only the obligations of the Mortgagor
under the
terms of the related Mortgage Loan as it may have been modified, to
consider
(among other things) the related Mortgaged Properties in their "as
is" or then
current conditions and occupancies, as modified by such party's
assumptions
(consistent with the Servicing Standard) regarding the possibility
and effects
of future adverse change with respect to such Mortgaged Properties,
to estimate
and consider (among other things) future expenses and to estimate
and consider
(consistent with the Servicing Standard) (among other things) the
timing of
recoveries, and to consider the existence and amount of any
outstanding
Nonrecoverable Advances the reimbursement of which is being
deferred pursuant to
Section 4.03(f), any outstanding Workout Delayed Reimbursement
Amounts and any
Unliquidated Advances. In addition, any such Person may update or
change its
recoverability determinations at any time and, consistent with the
Servicing
Standard, may obtain from the Special Servicer any reasonably
required analysis,
Appraisals or market value estimates or other information in the
Special
Servicer's possession for such purposes. Absent bad faith, the
Master
Servicer's, the Special Servicer's, the Trustee's or any Fiscal
Agent's
determination as to the recoverability of any Servicing Advance
shall be
conclusive and binding on the Certificateholders. The Trustee and
any Fiscal
Agent shall be entitled to conclusively rely on any recoverability
determination
made by the Master Servicer and the Master Servicer, the Trustee
and any Fiscal
Agent shall be entitled to conclusively rely on any recoverability
determination
made by the Special Servicer and shall be required to act in
accordance with
such determination.
-48-
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class XC, Class E, Class F, Class G, Class H,
Class J, Class
K, Class L, Class M, Class N, Class P, Class Q, Class Z, Class R-I
or Class R-II
Certificate.
"Non-Trust Loan" Any of a B-Note Non-Trust Loan, a Westchester
Subordinate Non-Trust Loan or the Westchester Pari Passu Non-Trust
Loan, as the
case may be.
"Non-Trust Noteholder": The holder of a Non-Trust Loan.
"Non-United States Tax Person": Any Person other than a United
States
Tax Person.
"Officer's Certificate": A certificate signed by a Servicing
Officer
of the Master Servicer or the Special Servicer, as the case may be,
or by a
Responsible Officer of the Trustee.
"Opinion of Counsel": A written opinion of counsel (which counsel
may
be a salaried counsel for the Depositor, the Master Servicer or the
Special
Servicer) acceptable to and delivered to the Trustee or the Master
Servicer, as
the case may be, except that any opinion of counsel relating to (a)
the
qualification of REMIC I or REMIC II as a REMIC; (b) the
qualification of either
of Grantor Trust Z or Grantor Trust E as a grantor trust; (c)
compliance with
REMIC Provisions; or (d) the resignation of the Master Servicer or
Special
Servicer pursuant to Section 6.04 must be an opinion of counsel who
is in fact
Independent of the Master Servicer, the Special Servicer or the
Depositor, as
applicable.
"Option Holder": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"Original Class Principal Balance": With respect to any Class of
Regular Certificates (other than the Class X Certificates), the
initial Class
Principal Balance thereof as of the Closing Date, in each case as
specified in
the Preliminary Statement.
"Original Class XC Notional Amount": $1,737,992,951.
"Original Class XP Notional Amount": $1,694,554,000.
"Original Notional Amount": The Original Class XC Notional Amount
or
the Original Class XP Notional Amount, as applicable.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security
interest in such Certificate as the Holder thereof and any other
interest
therein, whether direct or indirect, legal or beneficial, as owner
or as
pledgee.
"Pass-Through Rate": With respect to:
(i)
the Class A-1 Certificates for any Distribution Date, 4.2180% per
annum;
(ii) the Class A-2 Certificates for any Distribution Date, 4.5560%
per
annum;
-49-
(iii) the Class A-3 Certificates for any Distribution Date, 4.6740%
per annum;
(iv) the Class A-SB Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.6740% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(v)
the Class A-4 Certificates for any Distribution Date, a per annum
rate equal to the lesser of (a) 4.7470% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(vi) the Class A-1A Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.7350% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(vii) the Class AM Certificates for any Distribution Date, a per
annum
rate equal to the lesser of (a) 4.8050% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(viii) the Class AJ Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.8450% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(ix) the Class B Certificates for any Distribution Date, a per
annum
rate equal to the lesser of (a) 4.9340% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(x)
the Class C Certificates for any Distribution Date, a per annum
rate equal to the lesser of (a) 4.9530% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xi) the Class D Certificates for any Distribution Date, a per
annum
rate equal to the lesser of (a) 5.0230% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xii) the Class E Certificates for any Distribution Date, a per
annum
rate equal to the lesser of (a) 5.1310% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xiii) the Class F Certificates for any Distribution Date, a per
annum
rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date minus 0.013%
(xiv) the Class G Certificates for any Distribution Date, a per
annum
rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(xv) the Class H Certificates for any Distribution Date, a per
annum
rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
-50-
(xvi) the Class J Certificates for any Distribution Date, a per
annum
rate equal to the lesser of (a) 4.5490% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xvii) the Class K Certificates for any Distribution Date, a per
annum
rate equal to the lesser of (a) 4.5490% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xviii) the Class L Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 4.5490% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xix) the Class M Certificates for any Distribution Date, a per
annum
rate equal to the lesser of (a) 4.5490% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xx) the Class N Certificates for any Distribution Date, a per
annum
rate equal to the lesser of (a) 4.5490% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xxi) the Class P Certificates for any Distribution Date, a per
annum
rate equal to the lesser of (a) 4.5490% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xxii) the Class Q Certificates for any Distribution Date, a per
annum
rate equal to the lesser of (a) 4.5490% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xxiii) the Class XC Certificates, for any Distribution Date, a
rate
equal to the weighted average of the Class XC Strip Rates for the
Class XC Components for such Distribution Date (weighted on the
basis of the respective Component Notional Amounts of such
Components outstanding immediately prior to such Distribution
Date); and
(xxiv) the Class XP Certificates for any Distribution Date, a rate
equal to the weighted average of the Class XP Strip Rates for the
respective Class XP Components for such Distribution Date
(weighted on the basis of the respective Component Notional
Amounts of such Components outstanding immediately prior to such
Distribution Date).
"P&I Advance": As to any Trust Mortgage Loan or Trust REO Loan,
any
advance made by the Master Servicer, the Trustee or any Fiscal
Agent pursuant to
Section 4.03.
"P&I Advance Date": The Business Day immediately preceding each
Distribution Date.
"Penalty Interest": With respect to any Mortgage Loan (or any
successor REO Loan with respect thereto), any amounts collected
thereon, other
than late payment charges, Additional Interest, Prepayment Premiums
or Yield
Maintenance Charges, that represent penalty interest (arising out
of a
-51-
default) in excess of interest on such Mortgage Loan (or such
successor REO
Loan) accrued at the related Mortgage Rate.
"Percentage Interest": With respect to any Regular Certificate, the
portion of the relevant Class evidenced by such Certificate,
expressed as a
percentage, the numerator of which is the Certificate Principal
Balance or
Certificate Notional Amount, as the case may be, of such
Certificate as of the
Closing Date, as specified on the face thereof, and the denominator
of which is
the Original Class Principal Balance or Original Notional Amount,
as the case
may be, of the relevant Class. With respect to a Residual
Certificate or Class Z
Certificate, the percentage interest in distributions to be made
with respect to
the relevant Class, as stated on the face of such Certificate.
"Performance Certification": As defined in Section 8.16(b).
"Performing Party": As defined in Section 8.16(b).
"Periodic Payment": With respect to any Mortgage Loan as of any Due
Date, the scheduled payment of principal and/or interest on such
Mortgage Loan
(exclusive of Additional Interest), including any Balloon Payment,
that is
actually payable by the related Mortgagor from time to time under
the terms of
the related Mortgage Note (as such terms may be changed or modified
in
connection with a bankruptcy or similar proceeding involving the
related
Mortgagor or by reason of a modification, waiver or amendment
granted or agreed
to by the Special Servicer pursuant to Section 3.20).
"Permitted Investments": Any one or more of the following
obligations
or securities (including obligations or securities of the Trustee
or one of its
Affiliates if otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or
any
agency or instrumentality thereof (having original maturities of
not more
than 365 days), provided such obligations are backed by the full
faith and
credit of the United States. Such obligations must be limited to
those
instruments that have a predetermined fixed dollar amount of
principal due
at maturity that cannot vary or change. Interest may either be
fixed or
variable. If such interest is variable, interest must be tied to a
single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index. In addition, such obligations may
not have
a rating from S&P with an "r" highlighter;
(ii) repurchase agreements or obligations with respect to any
security
described in clause (i) above (having original maturities of not
more than
365 days), provided that the short-term deposit or debt
obligations, of the
party agreeing to repurchase such obligations are rated in the
highest
rating categories of each of S&P and Moody's or such lower
rating as will
not result in an Adverse Rating Event, as evidenced in writing by
the
Rating Agencies. In addition, it may not have a rating from S&P
with an "r"
highlighter and its terms must have a predetermined fixed dollar
amount of
principal due at maturity that cannot vary or change. Interest may
either
be fixed or variable. If such interest is variable, interest must
be tied
to a single interest rate index plus a single fixed spread (if
any), and
move proportionately with that index;
(iii) federal funds, unsecured uncertified certificates of deposit,
time deposits, demand deposits and bankers' acceptances of any bank
or
trust company organized under the laws of the
-52-
United States or any state thereof (having original maturities of
not more
than 365 days), the short term obligations of which are rated in
the
highest rating categories of each of S&P and Moody's or such
lower rating
as will not result in an Adverse Rating Event, as evidenced in
writing by
the Rating Agencies. In addition, it may not have a rating from
S&P with an
"r" highlighter and its terms should have a predetermined fixed
dollar
amount of principal due at maturity that cannot vary or change.
Interest
may either be fixed or variable. If such interest is variable,
interest
must be tied to a single interest rate index plus a single fixed
spread (if
any), and move proportionately with that index;
(iv) commercial paper (including both non-interest bearing discount
obligations and interest-bearing obligations and having original
maturities
of not more than 365 days) of any corporation or other entity
organized
under the laws of the United States or any state thereof which is
rated in
the highest rating category of each of S&P and Moody's or such
lower rating
as will not result in an Adverse Rating Event, as evidenced in
writing by
the Rating Agencies. The commercial paper by its terms must have a
predetermined fixed dollar amount of principal due at maturity that
cannot
vary or change. In addition, it may not have a rating from S&P
with an "r"
highlighter. Interest may either be fixed or variable. If such
interest is
variable, interest must be tied to a single interest rate index
plus a
single fixed spread (if any), and move proportionately with that
index;
(v) money market funds which are rated in the highest applicable
rating category of each of S&P and Moody's (or such lower
rating as will
not result in an Adverse Rating Event, as evidenced in writing by
the
Rating Agencies). In addition, it may not have a rating from
S&P with an
"r" highlighter and its terms must have a predetermined fixed
dollar amount
of principal due at maturity that cannot vary or change; and
(vi) any other obligation or security acceptable to each Rating
Agency, evidence of which acceptability shall be provided in
writing by
each Rating Agency to the Master Servicer, the Special Servicer and
the
Trustee;
provided that (1) no investment described hereunder shall evidence
either the
right to receive (x) only interest with respect to such investment
or (y) a
yield to maturity greater than 120% of the yield to maturity at par
of the
underlying obligations; and (2) no investment described hereunder
may be
purchased at a price greater than par if such investment may be
prepaid or
called at a price less than its purchase price prior to stated
maturity; and
provided further, that to the extent any investment described
hereunder includes
funds that relate to the Westchester Pari Passu Non-Trust Loan and
one or more
classes of any Westchester Pari Passu Non-Trust Loan Related MBS
are rated by
Fitch, then for purposes of clauses (i) through (v) above, the
phrase "each of
S&P and "Moody's" shall be deemed to mean "each of S&P,
Moody's and Fitch", the
term "an Adverse Rating Event" shall be deemed to mean "an Adverse
Rating Event
or a Westchester Related MBS Adverse Rating Event", and Fitch shall
be a "Rating
Agency" for purposes of this definition of "Permitted Investments".
"Permitted Transferee": Any Transferee that is not (i) a
Disqualified
Organization, (ii) any Person as to whom the transfer of any
Residual
Certificate may cause either REMIC I or REMIC II to fail to qualify
as a REMIC,
(iii) a Disqualified Non-United States Tax Person, (iv) a
Disqualified
Partnership or (v) a foreign permanent establishment or fixed base
(within the
meaning of any applicable income tax treaty between the United
States and any
foreign jurisdiction) of a United States Tax Person.
-53-
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year of
REMIC I or REMIC II, the Holder of Certificates holding the largest
Percentage
Interest of the related Class of Residual Certificates.
"Plurality Subordinate Certificateholder": As of any date of
determination, any single Holder of Certificates (or, if the
Controlling Class
consists of Book-Entry Certificates, 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 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 Certificates in proportion to the respective Certificate
Principal
Balances of such Certificates as of such date of determination.
"PNC": PNC Bank, National Association, a national banking
association,
or its successor in interest.
"PNC Capital Markets": PNC Capital Markets, Inc., a Pennsylvania
corporation, or its successor in interest.
"PNC Mortgage Loan Purchase Agreement": That certain mortgage loan
purchase agreement, dated as of June 21, 2005, between the
Depositor and PNC and
relating to the transfer of the PNC Trust Mortgage Loans to the
Depositor.
"PNC Trust Mortgage Loans": Each of the Trust Mortgage Loans
transferred and assigned to the Depositor pursuant to the PNC
Mortgage Loan
Purchase Agreement.
"Pool REO Account": A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on
behalf of the
Trustee in trust for the Certificateholders, which shall be
entitled "Midland
Loan Services, Inc., as Special Servicer, for Wells Fargo Bank,
N.A., as Trustee
in trust for the registered holders of Merrill Lynch Mortgage Trust
2005-MCP1,
Commercial Mortgage Pass-Through Certificates, Series 2005-MCP1".
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on
the
Certificates for federal income tax purposes, (i) each Trust ARD
Loan is repaid
on its Anticipated Repayment Date, (ii) no Trust Mortgage Loan will
otherwise be
paid prior to maturity and (iii) there will be no extension of
maturity for any
Trust Mortgage Loan.
"Prepayment Interest Excess": With respect to any Mortgage Loan
that
was subject to a voluntary Principal Prepayment in full or in part
during any
Collection Period, which Principal Prepayment was applied to such
Mortgage Loan
following such Mortgage Loan's Due Date in such
-54-
Collection Period, the amount of interest (net of related Master
Servicing Fees
and, if applicable, any Additional Interest and Penalty Interest)
accrued on the
amount of such Principal Prepayment during the period from and
after such Due
Date and to but not including the date such Principal Prepayment
was applied to
such Mortgage Loan, to the extent collected (without regard to any
related
Prepayment Premium or Yield Maintenance Charge actually collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a voluntary Principal Prepayment in full or in
part during
any Collection Period, which Principal Prepayment was applied to
such Mortgage
Loan prior to such Mortgage Loan's Due Date in such Collection
Period, the
amount of interest, to the extent not collected from the related
Mortgagor
(without regard to any Prepayment Premium or Yield Maintenance
Charge actually
collected), that would have accrued (at a rate per annum equal to
the sum of (x)
the related Net Mortgage Rate for such Mortgage Loan and (y) the
Trustee Fee
Rate), on the amount of such Principal Prepayment during the period
commencing
on the date as of which such Principal Prepayment was applied to
such Mortgage
Loan and ending on the day immediately preceding such Due Date,
inclusive (net
of any portion of that interest that would have constituted Penalty
Interest
and/or Additional Interest, if applicable).
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield
Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in
connection with a Principal Prepayment.
"Primary Collateral": The Mortgaged Property directly securing a
Crossed Loan and excluding any property as to which the related
lien may only be
foreclosed upon by exercise of cross-collateralization provisions.
"Prime Rate": The "prime rate" published in the "Money Rates"
section
of The Wall Street Journal, as such "prime rate" may change from
time to time.
If The Wall Street Journal ceases to publish the "prime rate", then
the Master
Servicer shall select an equivalent publication that publishes such
"prime
rate"; and if such "prime rate" is no longer generally published or
is limited,
regulated or administered by a governmental or quasi-governmental
body, then the
Master Servicer shall select a comparable interest rate index. In
either case,
such selection shall be made by the Master Servicer in its sole
discretion and
the Master Servicer shall notify the Trustee and the Special
Servicer in writing
of its selection.
"Principal Distribution Amount": With respect to any Distribution
Date, the aggregate of the following (without duplication):
(a) the aggregate of the principal portions of all Periodic
Payments
(other than Balloon Payments) and any Assumed Periodic Payments due
or
deemed due in respect of the Trust Mortgage Loans for their
respective Due
Dates occurring during the related Collection Period, to the extent
paid by
the related Mortgagor during or prior to, or otherwise received
during, the
related Collection Period or advanced with respect to such
Distribution
Date;
(b) the aggregate of all Principal Prepayments received on the
Trust
Mortgage Loans during the related Collection Period;
(c) with respect to any Trust Mortgage Loan as to which the related
Stated Maturity Date occurred during or prior to the related
Collection
Period, any payment of principal (other
-55-
than a Principal Prepayment) made by or on behalf of the related
Mortgagor
during the related Collection Period (including any Balloon
Payment), net
of any portion of such payment that represents a recovery of the
principal
portion of any Periodic Payment (other than a Balloon Payment) due,
or the
principal portion of any Assumed Periodic Payment deemed due, in
respect of
such Trust Mortgage Loan on a Due Date during or prior to the
related
Collection Period and included as part of the Principal
Distribution Amount
for such Distribution Date or any prior Distribution Date pursuant
to
clause (a) above;
(d) the aggregate of all Liquidation Proceeds, Insurance Proceeds
and,
to the extent not otherwise included in clause (a), (b) or (c)
above,
payments and revenues that were received on the Trust Mortgage
Loans during
the related Collection Period and that were identified and applied
by the
Master Servicer and/or Special Servicer as recoveries of principal
of the
Trust Mortgage Loans, in each case net of any portion of such
amounts that
represents a recovery of the principal portion of any Periodic
Payment
(other than a Balloon Payment) due, or of the principal portion of
any
Assumed Periodic Payment deemed due, in respect of the related
Trust
Mortgage Loan on a Due Date during or prior to the related
Collection
Period and included as part of the Principal Distribution Amount
for such
Distribution Date or any prior Distribution Date pursuant to clause
(a)
above;
(e) with respect to any REO Properties, the aggregate of the
principal
portions of all Assumed Periodic Payments deemed due in respect of
the
related Trust REO Loans for their respective Due Dates occurring
during the
related Collection Period to the extent received (in the form of
REO
Revenues or otherwise) during the related Collection Period or
advanced
with respect to such Distribution Date;
(f) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that were
received during the related Collection Period on such REO
Properties and
that were identified and applied by the Master Servicer and/or
Special
Servicer as recoveries of principal of the related Trust REO Loans,
in each
case net of any portion of such amounts that represents a recovery
of the
principal portion of any Periodic Payment (other than a Balloon
Payment)
due, or of the principal portion of any Assumed Periodic Payment
deemed
due, in respect of the related Trust REO Loan or the predecessor
Trust
Mortgage Loan on a Due Date during or prior to the related
Collection
Period and included as part of the Principal Distribution Amount
for such
Distribution Date or any prior Distribution Date pursuant to clause
(a) or
(e) above; and
(g) if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal
Distribution Amount
for the immediately preceding Distribution Date, over the aggregate
distributions of principal made on the Sequential Pay Certificates
on such
immediately preceding Distribution Date pursuant to Section 4.01;
provided that if any Nonrecoverable Advance or Workout-Delayed
Reimbursement
Amount is reimbursed, or interest on any Nonrecoverable Advance is
paid, from
collections on the Mortgage Pool received during the related
Collection Period
that are allocable as principal, as provided in Section 1.02(a),
then the
Principal Distribution Amount for the subject Distribution Date
shall be reduced
(to not less than zero) as and to the extent provided in Section
1.02(b); and
provided, further, that if any Recovered Amounts are received
during the related
Collection Period, then the Principal Distribution
-56-
Amount for the subject Distribution Date shall be increased as and
to the extent
provided in Section 1.02(c).
Any allocation of the Principal Distribution Amount between Loan
Group
1 and Loan Group 2 for purposes of calculating the Loan Group 1
Principal
Distribution Amount and the Loan Group 2 Distribution Amount shall
take into
account Section 1.02.
"Principal Prepayment": Any payment of principal made by the
Mortgagor
on a Mortgage Loan that is received in advance of its scheduled Due
Date; and
provided that it shall not include a payment of principal that is
accompanied by
an amount of interest representing scheduled interest due on any
date or dates
in any month or months subsequent to the month of prepayment.
"Principal Recovery Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer
out of
certain related recoveries pursuant to the third paragraph of
Section 3.11(c).
"Principal Recovery Fee Rate": With respect to all amounts set
forth
in the third paragraph of Section 3.11(c), 1.0%.
"Prium Office Portfolio II A-Note Trust Mortgage Loan": The A-Note
Trust Mortgage Loan identified as loan number 8 on the Mortgage
Loan Schedule
and as being secured by the Prium Office Portfolio.
"Prium Office Portfolio II B-Note Non-Trust Loan": The B-Note
Non-Trust Loan that relates to the Prium Office Portfolio II A-Note
Trust
Mortgage Loan.
"Privileged Person": Any Certificateholder, any Certificate Owner,
any
prospective transferee of a Certificate or interest therein, any
Rating Agency,
any Mortgage Loan Seller, any Non-Trust Noteholder, any Underwriter
or any party
hereto; provided that no Certificate Owner or prospective
transferee of a
Certificate or an interest therein shall be considered a
"Privileged Person" or
be entitled to a password or restricted access as contemplated by
Section 3.15
unless such Person has delivered to the Trustee or the Master
Servicer, as
applicable, a certification in the form of Exhibit I-1 or Exhibit
I-2 (or such
other form as may be reasonably acceptable to the Trustee or the
Master
Servicer, as applicable), as applicable.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The prospectus dated June 10, 2005, as supplemented
by
the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The final prospectus supplement dated June
21, 2005 of the Depositor relating to the registration of the
Registered
Certificates under the Securities Act.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Option Notice": As defined in Section 3.18(e).
-57-
"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 (pursuant to Section 3.11(c)) with respect to such Trust
Mortgage Loan
(or Trust REO Loan), and (e) any other Additional Trust Fund
Expenses in respect
of such Trust Mortgage Loan (or Trust REO Loan) (including any
Additional Trust
Fund Expenses (which includes Special Servicing Fees and Workout
Fees)
previously reimbursed or paid by the Trust Fund but not so
reimbursed by the
related Mortgagor or from related Insurance Proceeds or Liquidation
Proceeds);
provided that the Purchase Price shall not be reduced by any
outstanding P&I
Advance.
"Qualified Institutional Buyer" or "QIB": A "qualified
institutional
buyer" within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the
relevant
jurisdiction (i) with a minimum claims paying ability rating of at
least "A-" by
S&P, "A3" by Moody's and, if applicable, "A" by Fitch (or the
obligations of
which are guaranteed or backed by a company having such a claims
paying ability)
and (ii) with respect to the fidelity bond and errors and omissions
Insurance
Policy required to be maintained pursuant to Section 3.07(c), an
insurance
company that has a claims paying ability rated no lower than two
rating
categories (without regard to pluses or minuses or numerical
qualifications)
below the rating assigned to the then highest rated outstanding
Certificate, but
in no event lower than "A-" by S&P, "A3" by Moody's and, if
applicable, "A" by
Fitch (or the obligations of which are guaranteed or backed by a
company having
such a claims paying ability) or, in the case of clauses (i) and
(ii), such
other rating as each Rating Agency shall have confirmed in writing
will not
result in an Adverse Rating Event or a Westchester Related MBS
Adverse Rating
Event. For purposes of the foregoing, the ratings from Fitch shall
only be
applicable if the Westchester Loan Combination is involved and one
or more
classes of the Westchester Pari Passu Non-Trust Loan Related MBS is
rated by
Fitch.
"Qualified Substitute Mortgage Loan": A mortgage loan which must,
on
the date of substitution: (i) have an outstanding principal
balance, after
application of all scheduled payments of principal and interest due
during or
prior to the month of substitution, not in excess of the Stated
Principal
Balance of the deleted Trust Mortgage Loan as of the Due Date in
the calendar
month during which the substitution occurs; (ii) have a Mortgage
Rate not less
than the Mortgage Rate of the deleted Trust Mortgage Loan; (iii)
have the same
Due Date as and a grace period no longer than the deleted Trust
Mortgage Loan;
(iv) accrue interest on the same basis as the deleted Trust
Mortgage Loan (for
-58-
example, on the basis of a 360-day year consisting of twelve 30-day
months); (v)
have a remaining term to stated maturity not greater than, and not
more than two
years less than, the remaining term to stated maturity of the
deleted Trust
Mortgage Loan; (vi) have a then current Loan-to-Value Ratio not
higher than that
of the deleted Trust Mortgage Loan and a current Loan-to-Value
Ratio not higher
than the then current Loan-to-Value Ratio of the deleted Trust
Mortgage Loan;
(vii) comply as of the date of substitution with all of the
representations and
warranties set forth in the applicable Mortgage Loan Purchase
Agreement; (viii)
have an Environmental Assessment that indicates no adverse
environmental
conditions and an engineering report that indicates no adverse
physical
condition with respect to the related Mortgaged Property and which
will be
delivered as a part of the related Mortgage File; (ix) have a
current Debt
Service Coverage Ratio of not less than the greater of the original
Debt Service
Coverage Ratio of the deleted Trust Mortgage Loan and the current
Debt Service
Coverage Ratio of the deleted Trust Mortgage Loan; (x) be
determined by an
Opinion of Counsel (at the applicable Mortgage Loan Seller's
expense) to be a
"qualified replacement mortgage" within the meaning of Section
860G(a)(4) of the
Code; (xi) not have a maturity date after the date two years prior
to the Rated
Final Distribution Date; (xii) not be substituted for a deleted
Trust Mortgage
Loan unless the Trustee has received prior confirmation in writing
by each
Rating Agency that such substitution will not result in an Adverse
Rating Event
(the cost, if any, of obtaining such confirmation to be paid by the
applicable
Mortgage Loan Seller); (xiii) have a date of origination that is
not more than
12 months prior to the date of substitution; (xiv) have been
approved by the
Controlling Class Representative (or, if there is no Controlling
Class
Representative then serving, by the Holders of Certificates
representing a
majority of the Voting Rights allocated to the Controlling Class),
which
approval may not be unreasonably withheld or delayed; (xv) not be
substituted
for a deleted Trust Mortgage Loan if it would result in the
termination of the
REMIC status of any of the REMICs established under this Agreement
or the
imposition of tax on any of such REMICs other than a tax on income
expressly
permitted or contemplated to be received by the terms of this
Agreement, as
determined by an Opinion of Counsel (at the applicable Mortgage
Loan Seller's
expense); (xvi) have comparable prepayment restrictions; and (xvii)
become a
part of the same Loan Group as the deleted Trust Mortgage Loan. In
the event
that one or more mortgage loans are substituted for one or more
deleted Trust
Mortgage Loans, then the amounts described in clause (i) shall be
determined on
the basis of aggregate principal balances and the rates described
in clause (ii)
above (provided that the lowest Net Mortgage Rate shall not be
lower than the
highest fixed Pass-Through Rate of any Class of Sequential Pay
Certificates
outstanding) and the remaining term to stated maturity referred to
in clause (v)
above shall be determined on a weighted average basis. When a
Qualified
Substitute Mortgage Loan is substituted for a deleted Trust
Mortgage Loan, the
applicable Mortgage Loan Seller shall certify that the proposed
Qualified
Substitute Mortgage Loan meets all of the requirements of the above
definition
and shall send such certification to the Trustee.
"Rated Final Distribution Date": The Distribution Date in June
2043.
"Rating Agency": Each of S&P and Moody's; provided that, if one
of
more classes of any Westchester Pari Passu Non-Trust Loan Related
MBS are rated
by Fitch or Dominion Bond Ratings Service, Inc., then for purposes
of the term
"Westchester Related MBS Adverse Rating Event" as used in this
Agreement, Fitch
and Dominion Bond Rating Service, Inc. shall each be a Rating
Agency.
"Realized Loss": With respect to: (1) each Specially Serviced
Mortgage
Loan or Corrected Mortgage Loan as to which a Final Recovery
Determination has
been made, or with respect to any successor REO Loan as to which a
Final
Recovery Determination has been made as to the related REO
Property, an amount
(not less than zero) equal to (a) the unpaid principal balance of
such Mortgage
-59-
Loan or REO Loan, as the case may be, as of the commencement of the
Collection
Period in which the Final Recovery Determination was made, plus (b)
without
taking into account the amount described in subclause (1)(d) of
this definition,
all accrued but unpaid interest on such Mortgage Loan or such REO
Loan, as the
case may be, at the related Mortgage Rate to but not including the
Due Date in
the Collection Period in which the Final Recovery Determination was
made
(exclusive of any portion thereof that constitutes Penalty
Interest, Additional
Interest, Prepayment Premiums or Yield Maintenance Charges), plus
(c) any
related unpaid servicing expenses, any related Servicing Advances
(together with
Unliquidated Advances in respect of prior related Servicing
Advances) that, as
of the commencement of the Collection Period in which the Final
Recovery
Determination was made, had not been reimbursed from the subject
Mortgage Loan
or REO Property, as the case may be, and any new related Servicing
Advances made
during such Collection Period, minus (d) all payments and proceeds,
if any,
received in respect of and allocable to such Mortgage Loan or such
REO Loan, as
the case may be, during the Collection Period in which such Final
Recovery
Determination was made net of any portion of such payments and/or
proceeds that
is payable or reimbursable in respect of the related liquidation
and other
servicing expenses and, in the case of a Trust Mortgage Loan or
Trust REO Loan
that is part of a Loan Combination, net of any portion of such
payments and/or
proceeds that represent Liquidation Proceeds payable to the holder
of the
related Non-Trust Loan(s); (2) each defaulted Mortgage Loan as to
which any
portion of the principal or previously accrued interest (other than
Additional
Interest and Penalty Interest) payable thereunder or any
Unliquidated Advance
was canceled in connection with a bankruptcy or similar proceeding
involving the
related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan
granted or agreed to by the Special Servicer pursuant to Section
3.20, the
amount of such principal and/or interest or Unliquidated Advance so
canceled;
(3) each Mortgage Loan as to which the Mortgage Rate thereon has
been
permanently reduced and not recaptured for any period in connection
with a
bankruptcy or similar proceeding involving the related Mortgagor or
a
modification, waiver or amendment of such Mortgage Loan granted or
agreed to by
the Special Servicer pursuant to Section 3.20, the amount of the
consequent
reduction in the interest portion of each successive Periodic
Payment due
thereon (each such Realized Loss shall be deemed to have been
incurred on the
Due Date for each affected Periodic Payment); (4) each Mortgage
Loan or REO Loan
as to which there were any Nonrecoverable Advances, the amount of
any such
Nonrecoverable Advance reimbursed (and/or interest thereon paid)
from amounts
that would have otherwise been distributable as principal on the
Certificates;
and (5) each Trust Mortgage Loan purchased from the Trust Fund at a
price less
than the Purchase Price therefor, the amount of the deficiency.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which
such
Distribution Date occurs.
"Recording/Filing Agent": As defined in Section 2.01(d).
"Recovered Amount": As defined in Section 1.02(c).
"Registered Certificate": Any Class A-1, Class A-2, Class A-3,
Class
A-SB, Class A-4, Class A-1A, Class AM, Class AJ, Class B, Class C,
Class D or
Class XP Certificate.
"Regular Certificate": Any REMIC II Certificate other than a Class
R-II Certificate.
"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.
-60-
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 8.14.
"REMIC I": The segregated pool of assets subject hereto,
constituting
the primary trust created hereby and to be administered hereunder
with respect
to which a separate REMIC election is to be made and, consisting
of: (i) all of
the Trust Mortgage Loans as from time to time are subject to this
Agreement and
all payments under and proceeds of such Trust Mortgage Loans
received after the
Closing Date (excluding the Excess Servicing Strip and all
Additional Interest
on such Trust Mortgage Loans), together with all documents included
in the
related Mortgage Files and any related Escrow Payments and Reserve
Funds; (ii)
all amounts (inclusive of the Closing Date Deposit but exclusive of
the Excess
Servicing Strip and all Additional Interest) held from time to time
in the
Collection Account, the Interest Reserve Account, any Pool REO
Account, the
Gain-on-Sale Reserve Account, any Loan Combination Custodial
Account and the
Distribution Account; (iii) any REO Property acquired in respect of
a Trust
Mortgage Loan ; (iv) the rights of the Depositor under Sections 2,
3, 8, 9, 10,
11, 12, 13, 14, 16, 17, 19 and 20 of each of the Mortgage Loan
Purchase
Agreements with respect to the Trust Mortgage Loans; and (v) the
rights of the
mortgagee under all Insurance Policies with respect to the Trust
Mortgage Loans;
provided that REMIC I shall not include any Non-Trust Loan or any
successor REO
Loan with respect thereto or any payments or other collections of
principal,
interest, Prepayment Premiums, Yield Maintenance Charges or other
amounts
collected on a Non-Trust Loan or any successor REO Loan with
respect thereto.
"REMIC I Principal Balance": The principal amount of any REMIC I
Regular Interest outstanding as of any date of determination. As of
the Closing
Date, the initial REMIC I Principal Balance of each REMIC I Regular
Interest
shall be the amount set forth as such in the Preliminary Statement
hereto. On
each Distribution Date, the REMIC I Principal Balance of each REMIC
I Regular
Interest shall be permanently reduced by all distributions of
principal deemed
to have been made in respect of such REMIC I Regular Interest on
such
Distribution Date pursuant to Section 4.01(h), and shall be further
permanently
reduced on such Distribution Date by all Realized Losses and
Additional Trust
Fund Expenses deemed to have been allocated thereto on such
Distribution Date
pursuant to Section 4.04(b). The REMIC I Principal Balance of a
REMIC I Regular
Interest shall be increased, pursuant to the third paragraph of
Section 4.04(a),
in connection with increases in the Class Principal Balance of the
Corresponding
Certificates as contemplated by the second paragraph of Section
4.04(a).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and
designated as a
"regular interest" in REMIC I, as described in the Preliminary
Statement hereto.
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests and all amounts held from time to time,
to the extent
related to REMIC II, in the Distribution Account conveyed in trust
to the
Trustee for the benefit of REMIC II, as holder of the REMIC I
Regular 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.
-61-
"REMIC II Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-SB, Class A-4, Class A-1A, Class AM, Class AJ, Class B, Class C,
Class D,
Class XP, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class
M, Class N, Class P, Class Q, Class XC or Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating
to real estate mortgage investment conduits, which appear at
Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions,
and proposed, temporary and final Treasury regulations and any
published
rulings, notices and announcements promulgated thereunder, as the
foregoing may
be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": The Pool REO Account or any Loan Combination REO
Account, as applicable.
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09.
"REO Disposition": The sale or other disposition of any REO
Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan (or, if a Loan Combination is
involved,
one of the Mortgage Loans comprising the subject Loan Combination)
deemed for
purposes hereof to be outstanding with respect to each REO
Property. Each REO
Loan shall be deemed to be outstanding for so long as the related
REO Property
(or an interest therein) remains part of REMIC I and shall be
deemed to provide
for periodic payments of principal and/or interest equal to its
Assumed Periodic
Payment and otherwise to have the same terms and conditions as its
predecessor
Mortgage Loan (such terms and conditions to be applied without
regard to the
default on such predecessor Mortgage Loan and the acquisition of
the related REO
Property as part of the Trust Fund or, if applicable in the case of
any REO
Property that relates to a Loan Combination, on behalf of the Trust
and the
related Non-Trust Noteholder(s)). Each REO Loan shall be deemed to
have an
initial unpaid principal balance and Stated Principal Balance equal
to the
unpaid principal balance and Stated Principal Balance,
respectively, of its
predecessor Mortgage Loan as of the date of the related REO
Acquisition. All
Periodic Payments (other than a Balloon Payment), Assumed Periodic
Payments (in
the case of a Balloon Loan delinquent in respect of its Balloon
Payment) and
other amounts due and owing, or deemed to be due and owing, in
respect of the
predecessor Mortgage Loan as of the date of the related REO
Acquisition, shall
be deemed to continue to be due and owing in respect of an REO
Loan. Collections
in respect of each REO Loan (after provision for amounts to be
applied to the
payment of, or to be reimbursed to, the Master Servicer, the
Special Servicer,
the Trustee or any Fiscal Agent for the payment of, the costs of
operating,
managing, selling, leasing and maintaining the related REO Property
or for the
reimbursement of or payment to the Master Servicer, the Special
Servicer, the
Trustee or any Fiscal Agent for other related Servicing Advances as
provided in
this Agreement, interest on such Advances and other related
Additional Trust
Fund Expenses) shall be treated: first, as a recovery of accrued
and unpaid
interest on 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
-62-
with the normal servicing practices of the Master Servicer, as a
recovery of any
other amounts due and owing in respect of such REO Loan, including,
without
limitation, (i) Yield Maintenance Charges, Prepayment Premiums and
Penalty
Interest and (ii) Additional Interest and other amounts, in that
order;
provided, however, that if a Mortgage Loan that is part of a Loan
Combination
and the related Non-Trust Loan(s) become REO Loans, amounts
received with
respect to such REO Loans shall be applied to amounts due and owing
in respect
of such REO Loans as provided in the related Loan Combination
Intercreditor
Agreement. Notwithstanding the foregoing, all amounts payable or
reimbursable to
the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent, as
the case may be, in respect of the predecessor Mortgage Loan as of
the date of
the related REO Acquisition, including, without limitation, any
unpaid Servicing
Fees and any unreimbursed Advances, together with any interest
accrued and
payable to the Master Servicer, the Special Servicer, the Trustee
or any Fiscal
Agent, as the case may be, in respect of such Advances in
accordance with
Sections 3.03(d) and 4.03(d), shall continue to be payable or
reimbursable to
the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent, as
the case may be, in respect of an REO Loan pursuant to Section
3.05(a). In
addition, Workout-Delayed Reimbursement Amounts and Nonrecoverable
Advances with
respect to such REO Loan, in each case, that were paid from
collections on the
Trust Mortgage Loans and resulted in principal distributed to the
Certificateholders being reduced as a result of the first proviso
in the
definition of "Principal Distribution Amount", shall be deemed
outstanding until
recovered.
"REO Property": With respect to any Mortgage Loan (other than a
Mortgage Loan constituting part of a Loan Combination), a Mortgaged
Property
acquired on behalf and in the name of the Trust Fund for the
benefit of the
Certificateholders through foreclosure, acceptance of a
deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in
connection with
the default or imminent default of a Mortgage Loan; and with
respect to a Loan
Combination, the related Loan Combination REO Property.
"REO Revenues": All income, rents, profits and proceeds derived
from
the ownership, operation or leasing of any REO Property.
"REO Tax": As defined in Section 3.17(a)(i).
"Request for Release": A request signed by a Servicing Officer, as
applicable, of the Master Servicer in the form of Exhibit D-1
attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal": With respect to each Required Appraisal
Mortgage
Loan, an appraisal of the related Mortgaged Property from an
Independent
Appraiser selected by the Special Servicer, prepared in accordance
with 12
C.F.R. 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
-63-
the related Mortgagor has become the subject of a bankruptcy
proceeding, or (vi)
delinquent in respect of any Balloon Payment unless (x) the related
Mortgagor
makes an Assumed Periodic Payment on each Due Date (commencing with
the Due Date
of such Balloon Payment) during the period contemplated in clause
(y), and (y)
the Master Servicer receives, within 60 days after the Due Date of
such Balloon
Payment, written evidence from an institutional lender of such
lender's binding
commitment to refinance such Mortgage Loan within 120 days after
the Due Date of
such Balloon Payment and either such 120-day period has not expired
or it has
not been determined, in accordance with the definition of
"Specially Serviced
Mortgage Loan" that the refinancing could not reasonably be
expected to occur;
provided, however, that a Required Appraisal Mortgage Loan will
cease to be a
Required Appraisal Mortgage Loan:
(a) with respect to the circumstances described in clauses (i) and
(iii) above, when the related Mortgagor has made three consecutive
full and
timely Periodic Payments under the terms of such Trust Mortgage
Loan (as
such terms may be changed or modified in connection with a
bankruptcy or
similar proceeding involving the related Mortgagor or by reason of
a
modification, waiver or amendment granted or agreed to by the
Special
Servicer pursuant to Section 3.20); and
(b) with respect to the circumstances described in clauses (iv),
(v)
and (vi) above, when such circumstances cease to exist in the
reasonable
judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), but, with respect to any bankruptcy or
insolvency
proceedings described in clauses (iv) and (v), no later than the
entry of
an order or decree dismissing such proceeding, and with respect to
the
circumstances described in clause (vi) above, no later than the
date that
the Special Servicer agrees to an extension pursuant to Section
3.20
hereof;
so long as at that time no circumstance identified in clauses (i)
through (vi)
above exists that would cause the Trust Mortgage Loan to continue
to be
characterized as a Required Appraisal Mortgage Loan. For purposes
of the
foregoing, the Westchester Loan Combination shall be treated as a
single
Mortgage Loan.
"Required Appraisal Value": With respect to any Mortgaged Property
or
REO Property related to a Required Appraisal Mortgage Loan, 90% of
an amount
equal to (A) subject to reduction by the Special Servicer in
accordance with
Section 3.09(a), the Appraised Value of such Mortgaged Property or
REO Property,
as the case may be, as determined by a Required Appraisal or letter
update or
internal valuation, if applicable, reduced by (B) the amount of any
obligations
secured by liens on such Mortgaged Property that are prior to the
lien of such
Required Appraisal Mortgage Loan and estimated liquidation
expenses; provided,
however, that for purposes of determining any Appraisal Reduction
Amount in
respect of such Required Appraisal Mortgage Loan, such Appraisal
Reduction
Amount shall be amended no less often than annually to reflect the
Required
Appraisal Value determined pursuant to any Required Appraisal or
letter update
of a Required Appraisal or internal valuation, if applicable
conducted
subsequent to the original Required Appraisal performed pursuant to
Section
3.09(a).
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(f).
"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
-64-
environmental remediation, repairs, capital improvements, tenant
improvements
and/or leasing commissions with respect to the related Mortgaged
Property.
"Residual Certificate": A Class R-I or Class R-II Certificate.
"Responsible Officer": When used with respect to (i) the initial
Trustee, any officer in the Global Securitization Trust Services
Group of the
Corporate Trust Department of the initial Trustee, (ii) any
successor Trustee,
any officer or assistant officer in the Corporate Trust Department
of the
Trustee, or any other officer or assistant officer of the Trustee
customarily
performing functions similar to those performed by any of the above
designated
officers to whom a particular matter is referred by the Trustee
because of such
officer's knowledge of and familiarity with the particular subject,
and (iii)
any Fiscal Agent or any officer thereof.
"Restricted Servicer Reports": Collectively, to the extent not
filed
with the Securities and Exchange Commission, the CMSA Servicer
Watch List, the
CMSA Operating Statement Analysis Report, the CMSA NOI Adjustment
Worksheet, the
CMSA Financial File, the CMSA Comparative Financial Status Report,
the CMSA Loan
Level Reserve/LOC Report and the CMSA Reconciliation of Funds
Report.
"Rule 144A Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates, one or collectively more
global
certificates representing such Class registered in the name of the
Depository or
its nominee, in definitive, fully registered form without interest
coupons, and
each of which certificates has a Rule 144A CUSIP number.
"S&P": Standard & Poor's Ratings Services, a division of
The
McGraw-Hill Companies, Inc., or its successor in interest. If
neither such
Rating Agency nor any successor remains in existence, "S&P"
shall be deemed to
refer to such other nationally recognized statistical rating agency
or other
comparable Person designated by the Depositor, notice of which
designation shall
be given to the Trustee, the Master Servicer and the Special
Servicer, and
specific ratings of S&P herein referenced shall be deemed to
refer to the
equivalent ratings of the party so designated.
"Sarbanes-Oxley Certification": As defined in Section 8.16(a)(iv).
"Scheduled Payment": With respect to any Mortgage Loan, for any Due
Date following the Cut-off Date as of which it is outstanding, the
scheduled
Periodic Payment of principal and interest (other than Additional
Interest) on
such Mortgage Loan that is or would be, as the case may be, payable
by the
related Mortgagor on such Due Date under the terms of the related
Mortgage Note
as in effect on the Closing Date, without regard to any subsequent
change in or
modification of such terms in connection with a bankruptcy or
similar proceeding
involving the related Mortgagor or a modification, waiver or
amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant
to Section
3.20 or acceleration of principal by reason of default, and
assuming that each
prior Scheduled Payment has been made in a timely manner; provided,
however,
that if the related loan documents for a Loan Combination provide
for a single
monthly debt service payment for such Loan Combination, then the
Scheduled
Payment for each Mortgage Loan comprising such Loan Combination for
any Due Date
shall be that portion of the monthly debt service payment for such
Loan
Combination and such Due Date that is, in accordance with the
related loan
documents and/or the related Loan Combination Intercreditor
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.
-65-
"Securities Act": The Securities Act of 1933, as amended.
"Securities and Exchange Commission": The United States Securities
and
Exchange Commission or any successor.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-SB,
Class A-4, Class A-1A, Class XC or Class XP Certificate.
"Sequential Pay Certificate": Any Class A-1, Class A-2, Class A-3,
Class A-SB, Class A-4, Class A-1A, Class AM, Class AJ, Class B,
Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class
N, Class P or Class Q Certificate.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of
pocket" costs and expenses (including attorneys' fees and expenses
and fees of
real estate brokers) incurred by or on behalf of the Master
Servicer, the
Special Servicer, the Trustee or any Fiscal Agent in connection
with the
servicing of a Mortgage Loan, if a default is imminent thereunder
or after a
default, delinquency or other unanticipated event, or in connection
with the
administration of any REO Property, including, but not limited to,
the cost of
(a) compliance with the obligations of the Master Servicer and the
Special
Servicer, if any, set forth in Section 3.02 and 3.03, (b) (i) real
estate taxes,
assessments, penalties and other similar items, (ii) ground rents
(if
applicable), and (iii) premiums on Insurance Policies, in each
instance if and
to the extent Escrow Payments (if any) collected from the related
Mortgagor are
insufficient to pay such item when due and the related Mortgagor
has failed to
pay such item on a timely basis, (c) the preservation, insurance,
restoration,
protection and management of a Mortgaged Property, including the
cost of any
"force placed" insurance policy purchased by the Master Servicer or
the Special
Servicer to the extent such cost is allocable to a particular
Mortgaged Property
that the Master Servicer or the Special Servicer is required to
cause to be
insured pursuant to Section 3.07(a), (d) obtaining any Insurance
Proceeds or any
Liquidation Proceeds of the nature described in clauses (i)-(iii),
(v), (vii)
and (viii) of the definition of "Liquidation Proceeds," (e) any
enforcement or
judicial proceedings with respect to a Mortgaged Property,
including, without
limitation, foreclosures, (f) any Required Appraisal or other
appraisal
expressly required or permitted to be obtained hereunder, (g) the
operation,
management, maintenance and liquidation of any REO Property,
including, without
limitation, appraisals and compliance with Section 3.16(a) (to the
extent not
covered by available funds in the applicable REO Account), (h)
obtaining related
ratings confirmation (to the extent not paid by the related
Mortgagor), (i) UCC
filings (to the extent not reimbursed by the Mortgagor), (j)
compliance with the
obligations of the Master Servicer or the Trustee set forth in
Section 2.03(a)
or (b) and (k) any other expenditure expressly designated as a
Servicing Advance
under this Agreement. Notwithstanding anything to the contrary,
"Servicing
Advances" shall not include allocable overhead of the Master
Servicer or the
Special Servicer, such as costs for office space, office equipment,
supplies and
related expenses, employee salaries and related expenses and
similar internal
costs, and expenses or costs and expenses incurred by any such
party in
connection with its purchase of a Mortgage Loan or REO Property, or
costs or
expenses expressly required to be borne by the Master Servicer or
Special
Servicer without reimbursement pursuant to the terms of this
Agreement.
"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.
-66-
"Servicing File": Any documents, certificates, opinions and reports
(other than documents required to be part of the related Mortgage
File)
delivered by the related Mortgagor in connection with, or relating
to, the
origination and servicing of any Mortgage Loan, and that are
reasonably required
for the ongoing administration of the Mortgage Loan, including
appraisals,
surveys, property inspection reports, engineering reports,
environmental
reports, financial statements, leases, rent rolls and tenant
estoppels.
"Servicing Officer": Any officer or employee of the Master Servicer
or
the Special Servicer involved in, or responsible for, the
administration and
servicing of the Mortgage Loans, whose name and specimen signature
appear on a
list of servicing officers furnished by such party to the Trustee
and the
Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing Standard": With respect to the Master Servicer or the
Special Servicer, as applicable, the servicing and administration
of the
Mortgage Loans (including any Non-Trust Loans) for which it is
responsible
hereunder (a) in the same manner in which, and with the same care,
skill,
prudence and diligence with which, the Master Servicer or the
Special Servicer,
as the case may be, generally services and administers similar
mortgage loans
(i) for other third parties, giving due consideration to customary
and usual
standards of practice of prudent institutional commercial mortgage
loan
servicers servicing mortgage loans for third parties or (ii) held
in its own
portfolio, whichever standard is higher, (b) with a view to (i) the
timely
recovery of all Scheduled Payments of principal and interest under
the Mortgage
Loans, (ii) in the case of the Special Servicer, if a Mortgage Loan
comes into
and continues in default, the maximization of the recovery on that
Mortgage Loan
to the Certificateholders or, in the case of any Loan Combination,
to the
Certificateholders and the related Non-Trust Noteholder(s) (as a
collective
whole) on a net present value basis (the relevant discounting of
anticipated
collections to be performed at the related Mortgage Rate) and (iii)
the best
interests of the Certificateholders and the Trust Fund (or, in the
case of any
Loan Combination, the Certificateholders, the Trust Fund and the
related
Non-Trust Noteholder(s), taking into account, if applicable and to
the extent
consistent with the related Loan Combination Intercreditor
Agreement and the
related Mortgage Loan documents, the subordinate nature of the
related B-Note
Non-Trust Loan or the related Westchester Subordinate Non-Trust
Loan(s), as the
case may be), and (c) without regard to (i) any relationship that
the Master
Servicer or the Special Servicer, as the case may be, or any
Affiliate thereof
may have with the related Mortgagor (or any Affiliate thereof), the
Depositor,
any Mortgage Loan Seller, or any other party to the transactions
contemplated
hereby; (ii) the ownership of any Certificate by the Master
Servicer or the
Special Servicer, as the case may be, or by any Affiliate thereof;
(iii) the
right of the Master Servicer or the Special Servicer, as the case
may be, to
receive compensation or other fees for its services rendered
pursuant to this
Agreement; (iv) the obligations of the Master Servicer or the
Special Servicer,
as the case may be, to make Advances; (v) the ownership, servicing
or management
by the Master Servicer or the Special Servicer or any Affiliate
thereof for
others of any other mortgage loans or mortgaged property not
included in or
securing, as the case may be, the Mortgage Pool; (vi) any
obligation of the
Master Servicer or any Affiliate of the Master Servicer to
repurchase or
substitute a Mortgage Loan as a Mortgage Loan Seller; (vii) any
obligation of
the Master Servicer or any Affiliate of the Master Servicer to cure
a breach of
a representation and warranty with respect to a Mortgage Loan; and
(viii) any
debt the Master Servicer or Special Servicer or any Affiliate of
either has
extended to any Mortgagor or any Affiliate thereof.
-67-
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through
(g) of the
definition of "Specially Serviced Mortgage Loan".
"Significant Mortgage Loan": At any time of determination, any
Mortgage Loan that (1) has a principal balance of $20,000,000 or
more at the
time of determination or has, whether (a) individually, (b) as part
of a Crossed
Loan Group or (c) as part of a group of Mortgage Loans made to
affiliated
Mortgagors, a principal balance that is equal to or greater than 5%
or more of
the aggregate outstanding principal balance of the Mortgage Pool at
the time of
determination or (2) is one of the 10 largest Mortgage Loans (which
for the
purposes of this definition shall include Crossed Loan Groups and
groups of
Mortgage Loans made to affiliated Mortgagors) by outstanding
principal balance
at such time.
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of Regular Certificates evidencing a
$1,000
denomination.
"Sole Certificate Owner": As defined in Section 9.01.
"Special Servicer": Midland Loan Services, Inc., or any successor
in
interest thereto, or any successor special servicer appointed as
herein
provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and
payable to the
Special Servicer pursuant to the first paragraph of Section
3.11(c).
Special Servicing Fee Rate": With respect to each Specially
Serviced
Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Designated Mortgage Loan Documents": With respect to any
Mortgage Loan, the following documents collectively:
(i) the original executed Mortgage Note (or, alternatively, if the
original executed Mortgage Note has been lost, a lost note
affidavit and
indemnity with a copy of such Mortgage Note attached thereto);
(ii) an original or a copy of the Mortgage (with or without
recording
information);
(iii) the original or a copy of the policy or certificate of
lender's
title insurance or, if such policy has not been issued or located,
an
original or a copy of an irrevocable, binding commitment (which may
be a
pro forma policy or a marked version of the policy that has been
executed
by an authorized representative of the title company or an
agreement to
provide the same pursuant to binding escrow instructions executed
by an
authorized representative of the title company) to issue such title
insurance policy;
(iv) an original or a copy of any Ground Lease or ground lessor
estoppel; and
(v) a copy of any letter of credit relating to the Trust Mortgage
Loan;
-68-
provided that whenever the term "Specially Designated Mortgage Loan
Documents"
is used to refer to documents actually received by the Trustee or
by a Custodian
on its behalf, such term, with respect to any receipt or
certification by the
Trustee or a Custodian on its behalf for documents described in
clauses (iv) and
(v) of this definition, shall be deemed to include such documents
only to the
extent the Trustee or a Custodian on its behalf has actual
knowledge of their
existence.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which
any
of the following events have occurred:
(a) the related Mortgagor shall have failed to make when due any
Periodic Payment, including a Balloon Payment, and the failure
continues
unremedied--
(i)
except in the case of a Balloon Payment, for 60 days; or
(ii) solely in the case of a delinquent Balloon Payment, beyond the
day such Balloon Payment was due or (if longer) beyond the
applicable grace period for a Balloon Payment unless (x) the
related Mortgagor (A) makes in respect of each Due Date
(commencing with the Due Date of such Balloon Payment) during the
period contemplated in (B) below, without omission, Assumed
Periodic Payments and (B) delivers a refinancing commitment
within 60 days after such Mortgage Loan's maturity date, then for
such period (not to exceed 120 days) beyond such Mortgage Loan's
maturity date ending on the earlier of the date on which the
related Mortgagor fails to make an Assumed Periodic Payment or
the date on which it is determined that the refinancing could not
reasonably be expected to occur; or
(b) the Master Servicer, or the Special Servicer (with the consent
of
the Controlling Class Representative), shall have determined, in
its
reasonable judgment (exercised in accordance with the Servicing
Standard),
based on, among other things, communications with the related
Mortgagor,
that a default in making a Periodic Payment (including a Balloon
Payment)
is likely to occur and is likely to remain unremedied for at least
60 days;
or
(c) the Master Servicer, or the Special Servicer (with the consent
of
the Controlling Class Representative), shall have determined, in
its
reasonable judgment (exercised in accordance with the Servicing
Standard),
that a default (other than an Acceptable Insurance Default or a
default
described in clause (a) above) has occurred that may materially
impair the
value of the Mortgaged Property as security for the Mortgage Loan
and the
default continues unremedied beyond the applicable grace period
under the
terms of the Mortgage Loan (or, if no grace period is specified,
for 60
days, provided that a default that gives rise to an acceleration
right
without any grace period shall be deemed to have a grace period
equal to
zero); or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under
any
present or future federal or state bankruptcy, insolvency or
similar law or
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and
liabilities or
similar proceedings, or for the winding-up or liquidation of its
affairs,
shall have been entered against the related Mortgagor; provided
that if
such decree or order is discharged, dismissed or stayed within 60
days it
shall not be a Specially Serviced Mortgage Loan (and no Special
Servicing
Fees shall be payable); or
-69-
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of
debt, marshaling of assets and liabilities or similar proceedings
of or
relating to such Mortgagor or of or relating to all or
substantially all of
its property; or
(f) the related Mortgagor shall admit in writing its inability to
pay
its debts generally as they become due, file a petition to take
advantage
of any applicable insolvency or reorganization statute, make an
assignment
for the benefit of its creditors, or voluntarily suspend payment of
its
obligations; or
(g) the Master Servicer shall have received notice of the
commencement
of foreclosure or similar proceedings with respect to the related
Mortgaged
Property;
provided, however, that a Mortgage Loan will cease to be a
Specially Serviced
Mortgage Loan:
(i) with respect to the circumstances described in clause (a)
above,
when the related Mortgagor has made three consecutive full and
timely
Periodic Payments under the terms of such Mortgage Loan (as such
terms may
be changed or modified in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or by reason of a
modification,
waiver or amendment granted or agreed to by the Special Servicer
pursuant
to Section 3.20);
(ii) with respect to the circumstances described in clauses (b),
(d),
(e) and (f) above, when such circumstances cease to exist in the
reasonable
judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), but, with respect to any bankruptcy or
insolvency
proceedings described in clauses (d), (e) and (f), no later than
the entry
of an order or decree dismissing such proceeding;
(iii) with respect to the circumstances described in clause (c)
above,
when such default is cured; and
(iv) with respect to the circumstances described in clause (g)
above,
when such proceedings are terminated;
so long as at that time no other circumstance identified in clauses
(a) through
(g) above exists that would otherwise cause such Mortgage Loan to
continue to be
characterized as a Specially Serviced Mortgage Loan.
During any time an entire Loan Combination is serviced and
administered pursuant to this Agreement, if a Servicing Transfer
Event exists
with respect to one Mortgage Loan in such Loan Combination, it will
also be
considered to exist for the other Mortgage Loan(s) in such Loan
Combination;
provided that, in the case of the Westchester Loan Combination, if
a Westchester
Subordinate Noteholder prevents the occurrence of a Servicing
Transfer Event
with respect to the Westchester Trust Mortgage Loan through the
exercise of cure
rights as set forth in the Westchester Intercreditor Agreement,
then the
existence of such Servicing Transfer Event with respect to the
Westchester
Subordinate Non-Trust Loans shall not, in and of itself, result in
the existence
of a Servicing Transfer Event with respect to the Westchester Trust
Mortgage
Loan or cause the servicing of the Westchester Loan Combination to
be
transferred to the Special Servicer, unless a separate Servicing
Transfer Event
has occurred with respect thereto.
-70-
"Startup Day": With respect to each of REMIC I and REMIC II, the
day
designated as such in Section 10.01(c).
"State and Local Taxes": Taxes imposed by the states of New York,
Maryland and Kansas and by any other state or local taxing
authorities as may,
by notice to the Trustee, assert jurisdiction over the trust fund
or any portion
thereof, or which, according to an Opinion of Counsel addressed to
the Trustee,
have such jurisdiction.
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date specified in the Mortgage Note (as in effect on the Closing
Date) on which
the last payment of principal is due and payable under the terms of
the Mortgage
Note (as in effect on the Closing Date), without regard to any
change in or
modification of such terms in connection with a bankruptcy or
similar proceeding
involving the related Mortgagor or a modification, waiver or
amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant
to Section
3.20 and, in the case of an ARD Loan, without regard to its
Anticipated
Repayment Date.
"Stated Principal Balance": With respect to any Trust Mortgage Loan
as
of any date of determination, an amount (which amount shall not be
less than
zero) equal to (x) the Cut-off Date Balance of such Trust Mortgage
Loan (or, in
the case of a Qualified Substitute Mortgage Loan that is a Trust
Mortgage Loan,
the unpaid principal balance thereof after application of all
principal payments
due on or before the related date of substitution, whether or not
received),
permanently reduced on each Distribution Date, to not less than
zero, by (y) the
sum of:
(i) all payments and other collections of principal, if any, with
respect to such Trust Mortgage Loan that are included as part of
the
Principal Distribution Amount for such Distribution Date pursuant
to
clause(s) (a), (b), (c) and/or (d) of, and without regard to the
provisos
to, the definition of "Principal Distribution Amount";
(ii) any other amount received with respect to such Trust Mortgage
Loan during the related Collection Period that is not included
among the
payments and other collections of principal described in the
immediately
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:
-71-
(a) all amounts, if any, collected with respect to the related REO
Property that are allocable as principal of the subject Trust REO
Loan and
that are included as part of the Principal Distribution Amount for
such
Distribution Date pursuant to clause (e) and/or clause (f) of, and
without
regard to the provisos to, the definition of "Principal
Distribution
Amount"; and
(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 Westchester
Subordinate Non-Trust Loan or any successor REO Loan with respect
thereto, as of
any date of determination, shall be (1) the Cut-off Date Balance of
such
Mortgage Loan, as permanently reduced on each Westchester Early
Remittance Date
to not less than zero, by (2) the sum of (A) any amounts received
during the
related Collection Period that are allocable as principal of such
Non-Trust Loan
or any successor REO Loan with respect thereto and (B) any Realized
Losses
incurred with respect to such Non-Trust Loan or any successor REO
Loan during
the related Collection Period that represent a loss of principal
with respect
thereto (including as a result of a Deficient Valuation).
With respect to a Non-Trust Loan (other than a Westchester
Subordinate
Non-Trust Loan) or any successor REO Loan with respect thereto on
any date of
determination, the Stated Principal Balance shall equal the unpaid
principal
balance of such Non-Trust Loan or the deemed unpaid principal
balance of such
successor REO Loan.
"Subordinated Certificate": Any Class AM, AJ, Class B, Class C,
Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class
N, Class P, Class Q, Class R-I or Class R-II Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any
Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage
Loans as
provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to or as contemplated by Section 2.03(a) hereof, an amount
equal to the
excess, if any, of the Purchase Price of the Trust Mortgage Loan
being replaced
calculated as of the date of substitution over the Stated Principal
Balance of
the related Qualified Substitute Mortgage Loan as of the date of
substitution.
In the event that one or more Qualified Substitute Mortgage Loans
are
substituted (at the same time) for one or more deleted Trust
Mortgage Loans, the
Substitution Shortfall Amount shall be determined as provided in
the preceding
sentence on the basis of the aggregate Purchase Price of the Trust
Mortgage Loan
or Mortgage Loans being replaced and the aggregate Stated Principal
Balance of
the related Qualified Substitute Mortgage Loan or Mortgage Loans.
-72-
"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 Z and Grantor Trust E due to its
classification as a grantor trust under the Grantor Trust
Provisions, together
with any and all other information, reports or returns that may be
required to
be furnished to the Certificateholders or filed with the Internal
Revenue
Service under any applicable provisions of federal tax law or any
other
governmental taxing authority under applicable State and Local Tax
laws.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership
Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust": The common law trust created hereunder.
"Trust ARD Loan": Any Trust Mortgage Loan that is an ARD Loan.
"Trust Balloon Loan": Any Trust Mortgage Loan that is a Balloon
Loan.
"Trust Corrected Mortgage Loan": Any Trust Mortgage Loan that is a
Corrected Mortgage Loan.
"Trust Defaulted Mortgage Loan": Any Trust Mortgage Loan that is a
Defaulted Mortgage Loan.
"Trust Defeasance Mortgage Loan": Any Trust Mortgage Loan that is a
Defeasance Loan.
"Trust Fund": Collectively, (i) all of the assets of REMIC I and
REMIC
II, (ii) the Grantor Trust Z Assets, and (iii) the Grantor Trust E
Assets.
"Trust Mortgage Loan": Each of the mortgage loans, including any
A-Note Trust Mortgage Loan and the Westchester Trust Mortgage Loan,
transferred
and assigned to the Trust Fund
-73-
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": Wells Fargo Bank, N.A., its successor in interest, or
any
successor trustee appointed as herein provided.
"Trustee Fee": With respect to each Trust Mortgage Loan and each
Trust
REO Loan for any Distribution Date (excluding, in the case of the
initial
Distribution Date, any Closing Date Deposit Mortgage Loan), an
amount equal to
one month's interest for the most recently ended calendar month
(calculated on
the same interest accrual basis as such Trust Mortgage Loan or
Trust REO Loan,
as the case may be), accrued at the Trustee Fee Rate on the Stated
Principal
Balance of such Trust Mortgage Loan or Trust REO Loan, as the case
may be,
outstanding immediately following the prior Distribution Date (or,
in the case
of the initial Distribution Date, as of the Closing Date).
"Trustee Fee Rate": 0.0013% 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, PNC
Capital
Markets and Wachovia Capital Markets, LLC or in each case, its
respective
successor in interest.
"United States Tax Person": A citizen or resident of the United
States, a corporation, partnership or other entity created or
organized in, or
under the laws of, the United States or any political subdivision
thereof, or an
estate whose income from sources without the United States is
includable in
gross income for United States federal income tax purposes
regardless of its
connection with the conduct of a trade or business within the
United States, or
a trust if a court within the United States is able to exercise
supervision over
the administration of the trust and one or more United States
persons have the
authority to control all substantial decisions of the trust (or to
the extent
provided in the Treasury regulations, if the trust was in existence
on August
20, 1996 and elected to be treated as a United States person), all
within the
meaning of Section 7701(a)(30) of the Code.
"Unliquidated Advance": Any Advance previously made by a party
hereto
that (i) is not a Nonrecoverable Advance, (ii) has been previously
reimbursed to
the party that made the Advance as a
-74-
Workout-Delayed Reimbursement Amount pursuant to Section
3.05(a)(vii) out of
principal collections on other 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.
"USAP": The Uniform Single Attestation Program for Mortgage Bankers
established by the Mortgage Bankers of America.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times
during the term
of this Agreement, 100% of the Voting Rights shall be allocated
among the
Holders of the Regular Certificates. Ninety-eight percent (98%) of
the Voting
Rights shall be allocated among the Class A-1, Class A-2, Class
A-3, Class A-SB,
Class A-4, Class A-1A, Class AM, Class AJ, Class B, Class C, Class
D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class P
and Class Q Certificates in proportion to the respective Class
Principal
Balances of their Certificates. Two percent (2%) in the aggregate
of the Voting
Rights shall be allocated to the Class X Certificates (allocated,
pro rata,
between the Class XC and Class XP Certificates based upon their
respective
Notional Amounts). The Class Z and the Residual Certificates shall
have no
voting rights. Voting Rights allocated to a Class of
Certificateholders shall be
allocated among such Certificateholders in standard proportion to
the Percentage
Interests evidenced by their respective Certificates. In addition,
if the Master
Servicer is the holder of any Certificates, the Master Servicer, in
its capacity
as a Certificateholder, shall have no Voting Rights with respect to
matters
concerning compensation affecting the Master Servicer.
"Weighted Average Net Mortgage Pass-Through Rate": With respect to
any
Distribution Date, the rate per annum equal to the weighted
average, expressed
as a percentage and rounded to six decimal places, of the
respective Net
Mortgage Pass-Through Rates applicable to the Trust Mortgage Loans
and any Trust
REO Loans for such Distribution Date, weighted on the basis of
their respective
Stated Principal Balances immediately following the preceding
Distribution Date
(or, in the case of the initial Distribution Date, as of the
Closing Date).
"Westchester Controlling Party": The "Controlling Holder" within
the
meaning of the Westchester Intercreditor Agreement, which prior to
the
occurrence of a Westchester Control Appraisal Event (that is not
the subject of
a successful application of Westchester Control Retention
Collateral) with
respect to each Westchester Subordinate Non-Trust Loan, shall be
the Westchester
Controlling Subordinate Noteholder, and, following the occurrence
of a
Westchester Control Appraisal Event (that is not the subject of a
successful
application of Westchester Retention Collateral) with respect to
each
Westchester Subordinate Non-Trust Loan, shall be the Controlling
Class
Representative as the designee of the Trustee.
-75-
"Westchester Controlling Subordinate Noteholder": As of any date of
determination, the holder of the most junior Westchester
Subordinate Non-Trust
Loan, if any, as to which a Westchester Control Appraisal Event has
not occurred
and is continuing.
"Westchester Control Appraisal Event": A "Control Appraisal Event"
within the meaning of the Westchester Intercreditor Agreement.
"Westchester Control Appraisal Cure Event": A "Control Appraisal
Cure
Event" within the meaning of the Westchester Intercreditor
Agreement.
"Westchester Control Retention Collateral": Any "Control Retention
Collateral" within the meaning of the Westchester Intercreditor
Agreement.
"Westchester Early Remittance Date": The seventh day of each
calendar
month, or if the seventh day is not a Business Day, the next
succeeding Business
Day, commencing in July 2005.
"Westchester Intercreditor Agreement": The Agreement Among
Noteholders, dated June 29, 2005, between the Trust Fund as holder
of the
Westchester Trust Mortgage Loan and the related Non-Trust
Noteholders.
"Westchester Loan Combination": Collectively, the Westchester Trust
Mortgage Loan, the Westchester Pari Passu Non-Trust Loan and the
Westchester
Subordinate Non-Trust Loans. The term "Westchester Loan
Combination" shall
include any successor REO Loans with respect to the Westchester
Trust Mortgage
Loan, the Westchester Pari Passu Non-Trust Loan and the Westchester
Subordinate
Non-Trust Loans.
"Westchester Mortgaged Property": The Mortgaged Property identified
on
the Mortgage Loan Schedule as The Westchester.
"Westchester Pari Passu Non-Trust Loan": The Mortgage Loan in the
original principal amount of $100,000,000, that is secured by the
same Mortgage
encumbering the Westchester Mortgaged Property as the Westchester
Trust Mortgage
Loan and pari passu in right of payment and other respects to the
Westchester
Trust Mortgage Loan.
"Westchester Pari Passu Non-Trust Loan Related MBS": Any securities
evidencing an interest in, or secured by, the Westchester Pari
Passu Non-Trust
Loan or any successor REO Loan with respect thereto.
"Westchester Pari Passu Noteholder": The holder of the Westchester
Pari Passu Non-Trust Loan.
"Westchester Related MBS Adverse Rating Event" With respect to each
Rating Agency that assigned a rating to any class of Westchester
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).
-76-
"Westchester Pari Passu Non-Trust Loan Securitization Agreement":
Any
agreement governing the securitization of the Westchester Pari
Passu Non-Trust
Loan or any successor REO Loan with respect thereto.
"Westchester Specially Designated Actions": The matters in respect
of
which the Westchester Controlling Party is entitled to advise the
Special
Servicer, as set forth in Section 20(b) of the Westchester
Intercreditor
Agreement.
"Westchester Special Servicer": As defined in Sections 6.09 and
7.01(c).
"Westchester Subordinate Non-Trust Loan": Each of the Mortgage
Loans,
other than the Westchester Trust Mortgage Loan and the Westchester
Pari Passu
Non-Trust Loans, that are secured by the same Mortgage encumbering
the
Westchester Mortgaged Property as the Westchester Trust Mortgage
Loan and the
Westchester Pari Passu Non-Trust Loan, and that are subordinate in
right of
payment to the Westchester Trust Mortgage Loan. The Westchester
Subordinate
Non-Trust Loans shall not be part of the Mortgage Pool and will not
be
considered Trust Mortgage Loans.
"Westchester Subordinate Noteholder": Any holder of any Westchester
Subordinate Non-Trust Loan.
"Westchester Triggering Event": A "Purchase Trigger" within the
meaning of the Westchester Intercreditor Agreement.
"Westchester Trust Mortgage Loan": The Mortgage Loan secured by the
Westchester Mortgaged Property and included in the Trust Fund.
"Workout-Delayed Reimbursement Amounts": With respect to any Trust
Mortgage Loan, the amount of any Advance made with respect to such
Trust
Mortgage Loan on or before the date such Trust Mortgage Loan
becomes (or, but
for the making of three monthly payments under its modified terms,
would then
constitute) a Trust Corrected Mortgage Loan, together with (to the
extent
accrued and unpaid) interest on such Advances accruing before, on
and after such
date, to the extent that (i) such Advance is not reimbursed to the
Person who
made such Advance on or before the date, if any, on which such
Trust Mortgage
Loan becomes a Trust Corrected Mortgage Loan and (ii) the amount of
such Advance
becomes an obligation of the Mortgagor to pay such amount under the
terms of the
modified loan documents. That any amount constitutes all or a
portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit
the right of
any Person hereunder to determine that such amount instead
constitutes a
Nonrecoverable Advance.
"Workout Fee": With respect to each Corrected Mortgage Loan, the
fee
designated as such and payable to the Special Servicer pursuant to
the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan,
1.00%.
"Yield Maintenance Charge": Payments paid or payable, as the
context
requires, on a Mortgage Loan as the result of a Principal
Prepayment thereon,
not otherwise due thereon in respect of principal or interest,
which have been
calculated (based on Scheduled Payments on such Mortgage Loan) to
compensate the
holder for reinvestment losses based on the value of an interest
rate index at
or near the time of prepayment. Any other prepayment premiums,
penalties and
fees not so calculated will
-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 payments or other collections
of principal
received on the Mortgage Pool (with a corresponding
-79-
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 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
and the Loan
Group 2 Principal Distribution Amount, respectively, for each
Distribution Date
contemplated by this Section 1.02, each of those amounts shall be
calculated in
accordance with the respective definitions thereof (without regard
to this
Section 1.02) and shall thereafter be adjusted as provided in this
Section 1.02.
(e) Nothing contained in this Section 1.02 is intended to limit the
ability of any party hereto that is entitled to reimbursement
hereunder for any
unreimbursed Advances that have been or are determined to be
Nonrecoverable
Advances (together with interest accrued and payable thereon
pursuant
-80-
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.
-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-MCP1"
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 (i) the
"A Note
Holder" under each A/B Intercreditor Agreement and (ii) the "Note
A-1 Holder"
under the Westchester Intercreditor Agreement; provided that the
Master Servicer
shall, as further set forth in Article III, perform the servicing
obligations of
the "A Note Holder" under each A/B Intercreditor Agreement and the
servicing
obligations of the "Note A-1 Holder" under the Westchester
Intercreditor
Agreement. The transfer of the Trust Mortgage Loans and the related
rights and
property accomplished hereby is absolute and, notwithstanding
Section 11.07, is
intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section
2.01(a) above the Depositor shall direct, and hereby represents and
warrants
that it has directed, the Mortgage Loan Sellers pursuant to their
respective
Mortgage Loan Purchase Agreements to deliver to and deposit with,
or cause to be
delivered to and deposited with, the Trustee or a Custodian
appointed thereby
(with a copy to the Master Servicer and Special Servicer), on or
before the
Closing Date, the Mortgage File for each Trust Mortgage Loan so
assigned. The
Special Servicer may request the Master Servicer to deliver a copy
of the
Servicing File for any Trust Mortgage Loan (other than a Specially
Serviced
Mortgage Loan) if the Master Servicer shall not have granted the
Special
Servicer electronic access to such Servicing Files. None of the
Trustee, any
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 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
-82-
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 Depositor hereby represents and warrants that with respect
to
each of the Trust Mortgage Loans, the related Mortgage Loan Seller
has each
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 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.
-83-
(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.
The Master Servicer hereby acknowledges the receipt by it of the
Closing Date Deposits. The Master Servicer shall hold the Closing
Date Deposits
in the Collection Account and shall include the Closing Date
Deposits in the
amounts it is required to remit to the Trustee on the initial
P&I Advance Date.
The Closing Date Deposits shall remain uninvested.
(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 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(s),
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
-84-
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), (ix),
(x), (xi) and (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
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, any 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.
-85-
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 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
-86-
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 "Cr
