DEUTSCHE MORTGAGE SECURITIES, INC. MORTGAGE BACKED SECURITIES UNDERWRITING AGREEMENT
DEUTSCHE
MORTGAGE SECURITIES, INC.
MORTGAGE
BACKED SECURITIES
Dated
[_______]
DEUTSCHE
BANK SECURITIES INC.,
Acting
on
behalf of itself and, if applicable,
as
the
Representative of the several Underwriters
named
in
Schedule I to the Terms Agreement
(in
either such capacity sometimes herein the “Representative”)
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Ladies
and Gentlemen:
Section
1. Introductory.
Deutsche Mortgage Securities, Inc., a Delaware corporation (the “Depositor”),
proposes, subject to the terms and conditions stated herein, to sell its
Mortgage Backed Notes (the “Notes”)
and
Mortgage Backed Certificates (the “Certificates” and together with the Notes the
“Securities”)
from
time to time in one or more series (each, a “Series”).
Each
Series, which may include one or more classes of Notes and/or one or more
classes of Certificates, will be issued by a trust formed with respect to such
Series (each, a “Trust”).
Each
Series of Certificates will represent indebtedness of the related Trust. Each
Series of Notes will represent indebtedness of the related Trust. The assets
of
the Trust (the “Trust
Property”)
may
include, among other things, one or more pools of various types of single family
and/or multi-family mortgage loans (the “Mortgage
Loans”),
unsecured home improvement installment sales contracts and installment loans,
manufactured housing installment sale contracts or installment loan agreements,
beneficial interest therein, pass-through or participation certificates issued
or guaranteed by the Government National Mortgage Association or ▇▇▇▇▇▇ ▇▇▇
or
the Federal Home Loan Mortgage Corporation, letters of credit, insurance
policies, guarantees, reserve funds or other types of credit support, currency
or interest rate exchange agreements and other financial assets, and/or monies
on deposit in one or more trust accounts.
The
Securities are more fully described in the Registration Statement (as defined
herein). Each Series of Securities and any classes of Securities (each, a
“Class”)
within
such Series may vary as to, among other things, number and types of Classes,
principal or notional amount, interest rate, the percentage interest, if any,
evidenced by each Class in the payments of principal of and interest on, or
with
respect to, the Trust Property, priority of payment among Classes, credit
enhancement with respect to the related Trust Property or Securities, the
Classes of such Series subject to this Underwriting Agreement, and any other
terms contemplated by the Terms Agreement (as defined herein) with respect
to
the Securities of such Series.
Each
offering of the Securities to which this Underwriting Agreement applies will
be
made pursuant to the Registration Statement through the Representative or
through an underwriting syndicate managed by the Representative. Whenever the
Depositor determines to form a Trust and to make such an offering of Securities
of a Series, it will enter into an appropriate agreement (the “Terms
Agreement”),
a form
of which is attached hereto as Exhibit A, providing for the sale of certain
classes of such Securities to, and the purchase and offering thereof by, the
Representative and such other underwriters, if any, as have authorized the
Representative to enter into such Terms Agreement on their behalf (the
“Underwriters,”
which
term shall include the Representative, whether acting alone in the sale of
such
Securities, in which case any reference herein to the Representative shall
be
deemed to refer to the Representative in its individual capacity as Underwriter
of the Securities, or as a member of an underwriting syndicate). Such Terms
Agreement shall specify the undivided interest, principal or notional amount
of
each Class of the Securities to be issued, the Classes of Securities subject
to
this Underwriting Agreement, the price at which such Classes of Securities
are
to be purchased by the Underwriters from the Depositor and the initial public
offering price or prices or the method by which the price or prices at which
such Securities are to be sold will be determined.
Each
such
offering of Securities as to which Deutsche Bank Securities Inc. is the sole
underwriter or acts as the Representative of the several Underwriters will
be
governed by this Underwriting Agreement, as supplemented by the applicable
Terms
Agreement, and this Underwriting Agreement and such Terms Agreement shall inure
to the benefit of and be binding upon each Underwriter participating in the
offering of such Securities.
Section
2. Representations
and Warranties.
The
Depositor represents and warrants to, and agrees with, each Underwriter, as
of
the date of the related Terms Agreement, that:
(a) The
registration statement specified in the related Terms Agreement, on Form S-3,
including a prospectus, has been filed with the Securities and Exchange
Commission (the “Commission”)
for the
registration under the Securities Act of 1933, as amended (the “Act”),
of the
Securities, which registration statement has been declared effective by the
Commission. Such registration statement, as amended to the date of the related
Terms Agreement, including any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act which were filed under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
on or
before the effective date of the Registration Statement (as such date is defined
in Rule 158(c) under the Act, the “Effective
Date”),
is
hereinafter called the “Registration
Statement,”
and
such prospectus, as such prospectus is supplemented by a prospectus supplement
relating to the Securities of the related Series, each in the form first filed
after the date of the related Terms Agreement pursuant to Rule 424(b) under
the
Act, including any documents incorporated by reference therein pursuant to
Item
12 of Form S-3 under the Act which were filed under the Exchange Act on or
before the date of such prospectus supplement (such prospectus supplement,
including such incorporated documents, in the form first filed after the date
of
the related Terms Agreement pursuant to Rule 424(b) is hereinafter called the
“Prospectus
Supplement”),
is
hereinafter called the “Prospectus”
(except
where the context requires otherwise). Any reference herein to the terms
“amend,” “amendment” or “supplement” with respect to the Registration Statement,
the Prospectus or the Prospectus Supplement shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective
Date or the issue date of the Prospectus or Prospectus Supplement, as the case
may be, deemed to be incorporated therein by reference pursuant to Item 12
of
Form S-3 under the Act. The Depositor further proposes to prepare, after the
final terms of all classes of the Securities have been established, a Free
Writing Prospectus that will contain substantially all information that will
appear in the Prospectus Supplement, to the extent that such information is
known at that time and minus specific sections including the “Method of
Distribution” section (such Free Writing Prospectus, together with the Basic
Prospectus, the “Definitive Free Writing Prospectus”).
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(b) The
related Registration Statement, at the time it became effective, and the
prospectus contained therein, and any amendments thereof and supplements thereto
filed prior to the date of the related Terms Agreement, conformed in all
material respects to the requirements of the Act and the rules and regulations
of the Commission thereunder (the “Rules
and Regulations”);
on the
date of the related Terms Agreement and on the related Closing Date (________,
__, 200_), the Registration Statement, the Prospectus and the related Prospectus
Supplement, and any amendments thereof and supplements thereto, will conform
in
all material respects to the requirements of the Act and the Rules and
Regulations; such Registration Statement, at the time it became effective,
did
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; such Prospectus and Prospectus Supplement, on the date of any
filing pursuant to Rule 424(b) and on the related Closing Date, will not include
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading; provided, however, that the Depositor
makes no representations or warranties as to the information contained in or
omitted from (A) such Registration Statement or such Prospectus (or any
supplement thereto) in reliance upon and in conformity with written information
furnished to the Depositor by or on behalf of the Underwriters specifically
for
use in the preparation thereof as specified in the related Terms Agreement
or
(B) any ABS Filing (as defined herein), or in any amendment thereof or
supplement thereto, incorporated by reference in such Registration Statement
or
such Prospectus (or any amendment thereof or supplement thereto). In addition,
any Issuer Information (as defined below) contained in the Definitive
Free Writing Prospectus,
as of
the date thereof, did not contain an untrue statement of a material fact and
did
not omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The Effective Date shall mean the earlier of the date on which
the
Definitive Free Writing Prospectus is first used and the time of the first
Contract of Sale to which such Prospectus Supplement relates. As used herein,
“Pool Information” means all loan level data with respect to the characteristics
of the Mortgage Loans and administrative and servicing fees, as provided by
or
on behalf of the Depositor. The Depositor acknowledges that except for any
Computational Materials, the Underwriters’ Information (as defined in Exhibit B)
and the decrement/yield tables constitute the only information furnished in
writing by you or on your behalf for use in connection with the preparation
of
the Registration Statement or the Prospectus, and you confirm that the
Underwriters’ Information is correct with respect to you and the Securities such
Underwriter underwrites.
(c) The
Depositor is a corporation duly incorporated, validly existing and in good
standing under the laws of the state of its incorporation, and is duly qualified
to transact business and is in good standing in each jurisdiction in the United
States of America in which the conduct of its business or the ownership of
its
property requires such qualification, with corporate power to own, lease and
operate its property and conduct its business as it is currently
conducted.
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(d) The
Depositor has, and will have, the requisite power to execute and deliver each
of
this Underwriting Agreement, each pooling and servicing agreement, to be entered
into among the Depositor, the servicer specified therein (the “Servicer”),
and
the trustee specified therein (the “P&S
Trustee”);
each
trust agreement, to be entered into between the Depositor and the trustee
specified therein (the “Owner
Trustee”);
each
indenture, to be entered into among the Trust and the trustee specified therein
(the “Indenture
Trustee”
and
together with the P&S Trustee and the Owner Trustee, the “Trustee”);
each
transfer and servicing agreement, transfer agreement or other document executed
by the Depositor in connection with the issuance and sale of the related
Securities (each of the above-referenced agreements, an “Agreement”),
and
Terms Agreement and to perform its obligations hereunder and
thereunder.
(e) The
Depositor is not aware of (i) any request by the Commission for any further
amendment of the Registration Statement or the Prospectus or for any additional
information, (ii) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, or (iii) any notification with
respect to the suspension of the qualification of the Securities for sale in
any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(f) Each
of
the Agreements, Terms Agreements and this Underwriting Agreement has been,
or
will be, duly and validly authorized, executed and delivered by the Depositor,
and each of the Agreements (as applicable), Terms Agreements and this
Underwriting Agreement constitutes, or will constitute, the valid, legal and
binding obligation of the Depositor, enforceable against the Depositor in
accordance with its terms.
(g) The
Securities of each Series conform, or will conform as of the related Closing
Date, to the description thereof contained in the Registration Statement, the
Prospectus, and the related Prospectus Supplement; and the Securities of such
Series, on the related Closing Date, will have been duly and validly authorized
and, when such Securities are duly and validly executed, issued and delivered
in
accordance with the related Agreement, and sold to the Underwriters as provided
herein and in the related Terms Agreement, will each be validly issued and
outstanding and entitled to the benefits of such Agreement.
(h) As
of the
related Closing Date, the representations and warranties of the Depositor set
forth in the related Agreement will be true and correct.
(i) Neither
the execution and delivery by the Depositor of any Agreement (as applicable),
Terms Agreement or this Underwriting Agreement nor the consummation by the
Depositor of the transactions contemplated herein or therein, nor the issuance
of the Securities of a Series or the public offering thereof as contemplated
in
the Prospectus and the applicable Prospectus Supplement, will conflict in any
material respect with or result in a material breach of, or constitute a
material default (with notice or passage of time or both) under, or result
in
the imposition of any lien, pledge, charge, encumbrance, adverse claim or other
security interest of any other person (collectively, “Liens”)
upon
any of the property or assets of the Depositor (except as required or permitted
pursuant thereto or hereto), pursuant to any material mortgage, indenture,
loan
agreement, contract or other instrument to which the Depositor is party or
by
which it is bound, nor will such action result in any violation of any
provisions of any applicable law, administrative regulation or administrative
or
court decree, the certificate of incorporation or by-laws of the Depositor.
The
Depositor is not in violation of its certificate of incorporation, in default
in
any material respect in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease, trust agreement, transfer
and
servicing agreement or other instrument to which it is a party or by which
it
may be bound, or to which any material portion of its property or assets is
subject.
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(j) No
legal
or governmental proceedings are pending to which the Depositor is a party or
of
which any property of the Depositor is the subject, which if determined
adversely to the Depositor would, individually or in the aggregate, have a
material adverse effect on the financial position, shareholders’ equity or
results of operations of the Depositor; and to the best of the Depositor’s
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(k) Since
the
date as of which information is given in the Registration Statement, there
has
not been any material adverse change in the business or net worth of the
Depositor.
(l) Any
taxes, fees and other governmental charges in connection with the execution
and
delivery of this Underwriting Agreement, the related Terms Agreement or the
related Agreement and the execution, delivery and sale of the Securities have
been or will be paid at or prior to the related Closing Date.
(m) No
consent, approval, authorization or order of, or registration, filing or
declaration with, any court or governmental agency or body is required, or
will
be required, in connection with (i) the execution and delivery by the Depositor
of any Agreement (as applicable), Terms Agreement or this Underwriting Agreement
or the performance by the Depositor of any Agreement (as applicable), Terms
Agreement or this Underwriting Agreement or (ii) the offer, sale or delivery
of
the Securities of any Series, except such as shall have been obtained or made,
as the case may be, or will be obtained or made, as the case may be, prior
to
the applicable Closing Date, or will not materially adversely affect the ability
of the Depositor to perform its obligations under any Agreement (as applicable),
Terms Agreement or this Underwriting Agreement.
(n) The
Depositor possesses, and will possess, all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted
by
it and as described in the Prospectus and Prospectus Supplement, except to
the
extent that the failure to have such licenses, certificates, authorities or
permits does not have a material adverse effect on the Securities of any Series
or the financial condition of the Depositor, and the Depositor has not received,
nor will have received as of each Closing Date, any notice of proceedings
relating to the revocation or modification of any such license, certificate,
authority or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely affect
the conduct of its business, operations or financial condition.
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(o) On
the
related Closing Date, (i) the Depositor will have good and marketable title
to
the related Mortgage Loans being transferred by it to the Trust pursuant to
the
applicable Agreement, free and clear of any Lien, except to the extent permitted
in the applicable Agreement, (ii) the Depositor will not have assigned to any
person any of its right, title or interest in such Mortgage Loans or in the
applicable Agreement, and (iii) the Depositor will have the power and authority
to sell such Mortgage Loans to the Trust, and upon execution and delivery of
the
applicable Agreement by the Trustee and Servicer (as applicable), the Trust
will
have good and marketable title thereto, in each case free of Liens other than
any Lien created by an Underwriter.
(p) The
properties and businesses of the Depositor conform, and will conform, in all
material respects, to the descriptions thereof contained in the Prospectus
and
the Prospectus Supplements.
(q)
The
Depositor is not, as of the commencement of the offering, an Ineligible Issuer,
as such term is defined in Rule 405 of the 1933 Act Regulations.
(r) Neither
the Issuer nor the Trust Funds are or, as a result of the offer and sale of
the
Securities as contemplated in this Agreement will become, an “investment
company” or “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.
(s) The
Company acknowledges and agrees that the relationship between itself and the
Underwriter is an arms-length commercial relationship that creates no fiduciary
duty on the part of the Underwriter, and each party expressly disclaims any
fiduciary relationship.
Section
3. Purchase,
Sale and Delivery of Securities.
(a) On
the basis of the representations, warranties and agreements contained in this
Underwriting Agreement and in the Terms Agreement for a particular offering
of
Securities, but subject to the terms and conditions set forth in this
Underwriting Agreement and subject to the execution of such Terms Agreement,
the
Depositor agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter, severally and not jointly, agrees to purchase from the
Depositor, the respective original principal amounts of the related Securities
set forth in the related Terms Agreement opposite the name of such Underwriter,
plus any additional original principal amount of Securities which such
Underwriter may be obligated to purchase pursuant to Section 12 hereof, at
the
purchase price therefor set forth in such Terms Agreement.
The
parties hereto agree that settlement for all securities sold pursuant to this
Underwriting Agreement shall take place on the terms set forth herein and not
as
set forth in Rule 15c6-1(a) under the Exchange Act.
(b) Against
payment of the purchase price specified in the applicable Terms Agreement in
same day funds drawn to the order of the Depositor (or paid by such other manner
as may be agreed upon by the Depositor and the Representative), the Depositor
will deliver the related Securities of a Series to the Underwriters at the
address set forth in the related Terms Agreement, at such time as shall be
specified in such Terms Agreement, or at such other place and time as the
Representative and the Depositor shall agree upon, each such time being herein
referred to as a “Closing
Date.”
The
Securities of each Series will initially be in definitive, fully registered
form
or will be maintained through the facilities of The Depository Trust Depositor,
as indicated in the applicable Prospectus Supplement.
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(c) With
respect to the purchase of Securities of a Series by the Underwriters, the
Depositor hereby agrees to pay each Underwriter the compensation, if any,
specified in the related Terms Agreement.
Section
4. Public
Offering of Securities.
(a) It
is
understood by the parties hereto that, after the Registration Statement becomes
effective, the Underwriters propose to offer the Securities for sale to the
public (which may include selected dealers), as set forth in the Prospectus
and
the Underwriters agree that all such offers, solicitations and sales by them
shall be made in compliance with all applicable laws and regulations. Prior
to
the date of the first contract of sale made based on the Definitive Free Writing
Prospectus, the Representative has not sold any Securities or any security
backed by the Mortgage Loans, any interest in any Securities or any such
security of any Mortgage Loan.
(b) It
is
understood that the Underwriters will solicit offers to purchase the Securities
as follows:
(i) Prior
to
the time you have received the Definitive Free Writing Prospectus you may,
in
compliance with the provisions of this Agreement, solicit offers to purchase
Securities; provided, that you shall not accept any such offer to purchase
a
Securities or any interest in any Securities or Mortgage Loan or otherwise
enter
into any Contract of Sale for any Securities, any interest in any Securities
or
any Mortgage Loan prior to the investor’s receipt of the Definitive Free Writing
Prospectus.
(ii) Any
Free
Writing Prospectus (other than the Definitive Free Writing Prospectus) relating
to the Securities used by any Underwriter in compliance with the terms of this
Agreement prior to the time such Underwriter has entered into a Contract of
Sale
for Securities shall prominently set forth the following statement:
The
information in this free writing prospectus is preliminary, and will be
superseded by the Definitive Free Writing Prospectus. This free writing
prospectus is being delivered to you solely to provide you with information
about the offering of the Securities referred to in this free writing prospectus
and to solicit an offer to purchase the Securities, when, as and if issued.
Any
such offer to purchase made by you will not be accepted and will not constitute
a contractual commitment by you to purchase any of the Securities until we
have
accepted your offer to purchase Securities. We will not accept any offer by
you
to purchase Securities, and you will not have any contractual commitment to
purchase any of the Securities until after you have received the Definitive
Free
Writing Prospectus. You may withdraw your offer to purchase Securities at any
time prior to our acceptance of your offer.
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“Written
Communication” has the same meaning as that term is defined in Rule 405 of the
1933 Act Regulations.
(iii) Any
Free
Writing Prospectus relating to Securities and used by any Underwriter in
connection with marketing the Securities, including the Definitive Free Writing
Prospectus, shall prominently set forth the following statement:
The
Securities referred to in these materials are being sold when, as and if issued.
The Underwriters are advised that Securities may not be issued that have the
characteristics described in these materials. Our obligation to sell such
Securities to the Underwriters is conditioned on the mortgage loans and notes
having the characteristics described in these materials. If for any reason
we do
not deliver such Securities, we will notify the Underwriters, and neither the
issuer nor any underwriter will have any obligation to you to deliver all or
any
portion of the Securities which you have committed to purchase, and none of
the
issuer nor any underwriter will be liable for any costs or damages whatsoever
arising from or related to such non-delivery.
(c) It
is
understood that you will not enter into a Contract of Sale with any investor
until the investor has received the Definitive Free Writing Prospectus. For
purposes of this Agreement, Contract of Sale has the same meaning as in Rule
159
of the 1933 Act Regulations and all Commission guidance relating to Rule 159,
including without limitation the Commission’s statement in Securities Act
Release No. 33-8501 that “a contract of sale can occur under the federal
securities laws before there is a bilateral contract under state law, for
example when a purchaser has taken all actions necessary to be bound but a
seller’s obligations remain conditional under state law.” The Definitive Free
Writing Prospectus shall prominently set forth the following
statement:
This
Definitive Free Writing Prospectus supersedes the information in any free
writing prospectus previously delivered in connection with this offering, to
the
extent that this Definitive Free Writing Prospectus is inconsistent with any
information in any free writing prospectus previously delivered in connection
with this offering.
(d) It
is
understood that you may prepare and provide to prospective investors certain
Free Writing Prospectuses (as defined below), subject to the following
conditions:
(i) Unless
preceded or accompanied by a prospectus satisfying the requirements of Section
10(a) of the Act, the Underwriters shall not convey or deliver any Written
Communication to any person in connection with the initial offering of the
Securities, unless such Written Communication either (i) is made in reliance
on
Rule 134 under the Act, (ii) constitutes a prospectus satisfying the
requirements of Rule 430B under the Act, (iii) is the Definitive Free Writing
Prospectus, or (iv) both (1) constitutes a Free Writing Prospectus (as defined
below) used in reliance on Rule 164 and (2) includes only information that
is
within the definition of ABS Informational and Computational Materials as
defined in Item 1100 of Regulation AB.
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(ii) Each
Underwriter shall comply with all applicable laws and regulations in connection
with the use of Free Writing Prospectuses, including but not limited to Rules
164 and 433 of the 1933 Act Regulations and all Commission guidance relating
to
Free Writing Prospectuses, including but not limited to Commission Release
No.
33-8591.
(iii) For
purposes hereof, “Free Writing Prospectus” shall have the meaning given such
term in Rules 405 and 433 of the 1933 Act Regulations. “Issuer Information”
shall mean information included in a Free Writing Prospectus that both (i)
is
within the types of information specified in clauses (1) to (5) of footnote
271
of Commission Release No. 33-8591 (Securities Offering Reform) as shown in
Exhibit A hereto and (ii) has been either prepared by, or has been reviewed
and
approved by, the Depositor. “Underwriter Derived Information” shall refer to
information of the type described in clause (5) of such footnote 271 when
prepared by an Underwriter.
(iv) All
Free
Writing Prospectuses provided to prospective investors, whether or not filed
with the Commission, shall bear a legend on each page including the following
statement:
“THE
DEPOSITOR HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH
THE
SEC FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST,
YOU
SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS
THE ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER
AND THE OFFERING. YOU MAY GET THESE DOCUMENTS AT NO CHARGE BY VISITING ▇▇▇▇▇
ON
THE SEC WEB SITE AT ▇▇▇.▇▇▇.▇▇▇ [AT AMERICAN ▇▇▇▇.▇▇▇, OR AT UNDERWRITER’S
WEBSITE]. ALTERNATIVELY, THE ISSUER, ANY UNDERWRITER OR ANY DEALER PARTICIPATING
IN THE OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS AT NO CHARGE IF YOU
REQUEST IT BY CALLING TOLL-FREE 1-8[XX-XXX-XXXX].
The
Depositor shall have the right to require additional specific legends or
notations to appear on any Free Writing Prospectus, the right to require changes
regarding the use of terminology and the right to determine the types of
information appearing therein.
(v) The
Underwriters shall deliver to the Depositor and its counsel, no later than
two
business days prior to the proposed date of first use thereof, (i) any Free
Writing Prospectus prepared by or on behalf of the Underwriters that contains
any information that, if reviewed and approved by the Depositor, would be Issuer
Information, and (ii) any Free Writing Prospectus or portion thereof that
contains only a description of the final terms of the Securities after such
terms have been established for all classes of Securities being publicly
offered. No information in any Free Writing Prospectus shall consist of
information of a type that is not included within the definition of ABS
Informational and Computational Materials. To facilitate filing to the extent
required by Section 5(l) or 5(m), as applicable, all Underwriter Derived
Information shall be set forth in a document separate from the document
including Issuer Information. The Underwriters shall provide to the Depositor,
for filing as provided in Section 5.10, copies (in such format as required
by
the Depositor) of all Free Writing Prospectuses. All Free Writing Prospectuses
described in this subsection (e) must be approved by the Depositor before the
Underwriters provide the Free Writing Prospectus to investors pursuant to the
terms of this Agreement.
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(vi) Each
Underwriter agrees that all information included in the Free Writing
Prospectuses shall be prepared, to the extent possible, based on the information
contained in the Registration Statement and anticipated to be included in the
Prospectus. None of the information in the Free Writing Prospectuses may
conflict with the information contained in the Prospectus or the Registration
Statement.
(vii) The
Depositor shall not be obligated to file any Free Writing Prospectuses that
have
been determined to contain any material error or omission, unless the Depositor
is required to file the Free Writing Prospectus pursuant to Section 5(l) below.
In the event that an Underwriter becomes aware that, as of the date on which
an
investor entered into an agreement to purchase any Securities, any Free Writing
Prospectus prepared by or on behalf of the Underwriters and delivered to such
investor contained any untrue statement of a material fact or omitted to state
a
material fact necessary in order to make the statements contained therein,
in
light of the circumstances under which they were made, not misleading, such
Underwriter shall notify the Depositor thereof as soon as practical but in
any
event within one business day after discovery.
(viii) If
the
Underwriters do not provide any Free Writing Prospectuses to the Depositor
pursuant to subsection (e) above, the Underwriters shall be deemed to have
represented, as of the Closing Date, that they did not provide any prospective
investors with any information in written or electronic form in connection
with
the offering of the Securities that is required to be filed with the Commission
by the Depositor as a Free Writing Prospectus (other than the Definitive Free
Writing Prospectus) in accordance with the 1933 Act Regulations.
(ix) In
the
event of any delay in the delivery by the Underwriters to the Depositor of
any
Free Writing Prospectuses required to be delivered in accordance with subsection
(e) above, or in the delivery of the accountant’s comfort letter in respect
thereof pursuant to subsection (f) above, the Depositor shall have the right
to
delay the release of the Prospectus to investors or to the Underwriters, to
delay the Closing Date and to take other appropriate actions in each case as
necessary in order to allow the Depositor to comply with its agreement set
forth
in Section 5.10 to file the Free Writing Prospectuses by the time specified
therein.
(x) Each
Underwriter represents that it has in place, and covenants that it shall
maintain internal controls and procedures which it reasonably believes to be
sufficient to ensure full compliance with all applicable legal requirements
of
the 1933 Act Regulations with respect to the generation and use of Free Writing
Prospectuses in connection with the offering of the Securities. In addition,
each Underwriter shall, for a period of at least three years after the date
hereof, maintain written and/or electronic records of the
following:
10
(A)
Any
written communications in respect of the Securities not deemed a Prospectus
or a
Free Writing Prospectus because its content is limited to the statements
permitted by Rule 134 of the Securities Act;
(B) any
Free
Writing Prospectus used to solicit offers to purchase Securities;
(C) regarding
each Free Writing Prospectus delivered to a prospective investor, the date
of
such delivery and identity of such prospective investor;
(D) regarding
each offer to purchase Securities received by such Underwriter, the identity
of
the offeror, the date the offer was made and the proposed terms and allocation
of the Securities offered to be purchased; and
(E) regarding
each Contract of Sale entered into by such Underwriter, the date, identity
of
the investor and the terms of such Contract of Sale, including the amount and
price of Securities subject to such Contract of Sale.
(xi) Each
Underwriter covenants with the Depositor that after the final Prospectus is
available such Underwriter shall not distribute any written information
concerning the Securities to a prospective investor unless such information
is
preceded or accompanied by the final Prospectus.
(xii) Each
Underwriter agrees to provide written notice to the Depositor of the date it
first enters into any Contract of Sale for a Securities.
(e) Each
Underwriter further agrees that (i) it will include in every confirmation sent
out the notice required by Rule 173 informing the investor that the sale was
made pursuant to the Registration Statement and that the investor may request
a
copy of the Prospectus from such Underwriter; (ii) if a paper copy of the
Prospectus is requested by a person who receives a confirmation, such
Underwriter shall deliver a paper copy of such Prospectus; (iii) if an
electronic copy of the Prospectus is delivered by an Underwriter for any
purpose, such copy shall be the same electronic file containing the Prospectus
in the identical form transmitted electronically to such Underwriter by or
on
behalf of the Depositor specifically for use by such Underwriter pursuant to
this Section 4.6; for example, if the Prospectus is delivered to an Underwriter
by or on behalf of the Depositor in a single electronic file in .pdf format,
then such Underwriter will deliver the electronic copy of the Prospectus in
the
same single electronic file in .pdf format; and (iv) it has not used, and during
the period for which it has an obligation to deliver a “prospectus” (as defined
in Section 2(a)(10) of the Act) relating to the Securities (including any period
during which the Underwriters have such delivery obligation in its capacity
as a
“dealer” (as defined in Section 2(a)(12) of the Act)) it will not use any
internet website or electronic media containing information for prospective
investors, including any internet website or electronic media maintained by
third parties, in connection with the offering of the Securities, except in
compliance with applicable laws and regulations. Each Underwriter further agrees
that (i) if it delivers to an investor the Prospectus in .pdf format, upon
such
Underwriters’ receipt of a request from the investor within the period for which
delivery of the Prospectus is required, such Underwriter will promptly deliver
or cause to be delivered to the investor, without charge, a paper copy of the
Prospectus and (ii) it will provide to the Depositor any Free Writing
Prospectuses, or portions thereof, which the Depositor is required to file
with
the Commission in electronic format and will use reasonable efforts to provide
to the Depositor such Free Writing Prospectuses, or portions thereof, in either
Microsoft Word® or Microsoft Excel® format and not in a PDF, except to the
extent that the Depositor, in its sole discretion, waives such
requirements.
11
(f) In
the
event that an Underwriter uses a road show (as defined in Rule 433) in
connection with the offering of the Securities, all information in the road
show
will be provided orally only, and not as a Written Communication. Each
Underwriter agrees that any slideshow used in connection with a road show (i)
will only be provided as part of the road show and not separately, (ii) if
handed out at any meeting as a hard copy, will be retrieved prior to the end
of
the meeting, and (iii) will otherwise be used only in a manner that does not
cause the slideshow to be treated as a Free Writing Prospectus.
Section
5. Covenants
of the Depositor.
The
Depositor covenants and agrees with each Underwriter:
(a) That
immediately following the execution of each Terms Agreement, the Depositor
shall
prepare a Prospectus Supplement setting forth the amount of Securities covered
thereby and the terms thereof not otherwise specified in the Prospectus, the
price at which such Securities are to be purchased by the Underwriters from
the
Depositor, either the initial public offering price or the method by which
the
price at which such Securities are to be sold will be determined, the selling
concessions and reallowances, if any, and such other information as the
Representative and the Depositor deem appropriate in connection with the
offering of such Securities; provided, however, that the Depositor shall make
no
amendment or supplement to the Registration Statement affecting or relating
to
any material extent to the Securities of a Series to which this Underwriting
Agreement relates, and shall make no amendment or supplement to the Prospectus
or the Prospectus Supplement without furnishing the Representative with a copy
of the proposed form thereof and providing the Representative with a reasonable
opportunity to review the same, and shall not file any such amendment or
supplement to which the Representative shall reasonably object; and, provided
further, that the Depositor shall advise the Representative, promptly after
it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or the Prospectus Supplement or any amended Prospectus or Prospectus
Supplement has been filed or mailed for filing, of the issuance of any stop
order by the Commission, of the suspension of the qualification of the
Securities of a Series for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement, the Prospectus or the Prospectus Supplement or for additional
information; and, in the event of the issuance of any such stop order or of
any
order preventing or suspending the use of any Prospectus or Prospectus
Supplement relating to the Securities of a Series or suspending any such
qualification, promptly shall use its best efforts to obtain its
withdrawal.
(b) That
the
Depositor shall cause any Computational Materials and any Structural Term Sheets
(each as defined herein) with respect to the Securities of a Series that are
delivered by an Underwriter to the Depositor pursuant to Section 10 to be filed
with the Commission on a Current Report on Form 8-K (an “ABS
Filing”)
pursuant to Rule 13a-11 under the Exchange Act on the business day immediately
following the later of (i) the day on which such Computational Materials and
Structural Term Sheets are delivered to counsel for the Depositor by an
Underwriter prior to 1:00 p.m. New York time and (ii) the date on which the
related Prospectus Supplement is first made available to the public. The
Depositor shall cause any Collateral Term Sheet with respect to the Securities
of a Series that is delivered by the Representative to the Depositor in
accordance with the provisions of Section 11 to be filed with the Commission
on
an ABS Filing pursuant to Rule 13a-11 under the Exchange Act on the business
day
immediately following the day on which such Collateral Term Sheet is delivered
to counsel for the Depositor by the Representative. Each such ABS Filing shall
be incorporated by reference in the related Prospectus and the related
Registration Statement.
12
(c) To
furnish to each Underwriter copies of the Registration Statement (one of which
will be signed and will include all exhibits), each related preliminary
prospectus, the Prospectus, Prospectus Supplement, and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as such Underwriter may from time to time reasonably request; and,
if
the delivery of a Prospectus or Prospectus Supplement shall be at the time
required by law in connection with sales of the Securities of a Series and
either (i) any event shall have occurred as a result of which the Prospectus
or
Prospectus Supplement would include any untrue statement of a material fact
or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or (ii) for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or Prospectus Supplement, to notify
the Representative and to prepare and furnish to the Representative as the
Representative may from time to time reasonably request an amendment or a
supplement to the Prospectus or Prospectus Supplement which will correct such
statement or omission or effect such compliance, or if it is necessary at any
time to amend or supplement the Prospectus or Prospectus Supplement to comply
with the Act or the Rules and Regulations, the Depositor will promptly prepare
and file with the Commission an amendment or supplement that will correct such
statement or omission or an amendment that will effect such compliance;
provided, however, that the Depositor will not be required to file any such
amendment or supplement with respect to any Computational Materials, Structural
Term Sheets or Collateral Term Sheets incorporated by reference in the
Prospectus other than any amendments or supplements of such Computational
Materials or Structural Term Sheets that are furnished to the Depositor by
the
Underwriters pursuant to Section l0(c) hereof or any amendments or supplements
of such Collateral Term Sheets that are furnished to the Depositor by the
Underwriters pursuant to Section 11(c) hereof which are required to be filed
in
accordance therewith.
(d) So
long
as any of the Securities of a Series are outstanding, to furnish each
Underwriter copies of all reports or other communications (financial or other)
furnished to holders of such Securities, and to deliver to the Underwriters
during such same period (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission and (ii)
such
additional information concerning the business and financial condition of the
Depositor as such Underwriter may from time to time reasonably
request.
(e) Promptly
from time to time to take such action as the Representative may reasonably
request in order to qualify the Securities of a Series for offering and sale
under the securities laws of such states as the Representative may request
and
to continue such qualifications in effect so long as necessary under such laws
for the distribution of such Securities; provided, that in connection therewith
the Depositor shall not be required to qualify as a foreign corporation to
do
business or to file a general consent to service of process in any
jurisdiction.
13
(f) To
pay
all expenses (other than fees of counsel for the Underwriters, except as
provided herein) incident to the performance of the obligations under this
Underwriting Agreement and the related Terms Agreement, including:
(i) the
word
processing, printing and filing of the Registration Statement as originally
filed and of each amendment thereto;
(ii) the
reproduction of this Underwriting Agreement and the related Terms
Agreement;
(iii) the
preparation, printing, issuance and delivery of the Securities of each Series
to
the Underwriters;
(iv) the
fees
and disbursements of counsel and accountants for the Depositor;
(v) the
qualification of the Securities of a Series under securities laws in accordance
with the provisions of Section 5(e) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky
Survey;
(vi) if
requested by the Representative, the determination of the eligibility of the
Securities for investment and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of the Legal Investment Memorandum;
(vii) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, of the preliminary
prospectuses, and of the Prospectus and Prospectus Supplement and any amendments
or supplements thereto;
(viii) the
printing and delivery to the Underwriters of copies of the Blue Sky Survey
and,
if requested by the Representative, the Legal Investment Memorandum, if any;
and
(ix) the
fees
of any rating agency rating the Securities of a Series.
(g) To
file
or cause to be filed with the Commission all reports required to be filed with
respect to each Series pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act.
(h) So
long
as the Securities of a Series are outstanding, or until such time as each
Underwriter shall cease to maintain a secondary market in such Securities,
whichever occurs first, to deliver to each Underwriter all statements and
reports furnished to the related Trustee or Servicer pursuant the applicable
Agreement, as soon as such statements and reports are furnished to such Trustee
or Servicer.
14
(i) From
and
after the related Closing Date, not to take any action inconsistent with the
related Trust’s ownership of the related Mortgage Loans other than as permitted
by the applicable Agreement.
(j) To
the
extent, if any, that the rating provided with respect to any Class of Securities
of a Series by a rating agency or agencies that initially rate such Securities
is conditional upon the furnishing of documents or the taking of any other
actions by the Depositor, to furnish such documents and take any such other
actions.
(k) That
during the period when a prospectus is required by law to be delivered in
connection with the sale of the Securities of a Series pursuant to this
Underwriting Agreement and the related Terms Agreement, the Depositor will
file,
or cause the related Trustee to file on behalf of the related Trust, on a timely
and complete basis, all documents that are required to be filed by such Trust
with the Commission pursuant to Sections 13, 14 or 15(d) of the Exchange
Act.
(l) The
Depositor shall file any Free Writing Prospectus prepared by the Depositor
(including the Definitive Free Writing Prospectus), and any Issuer Information
contained in any Free Writing Prospectus provided to it by the Underwriters
under Section 4(d)(v), not later than the date of first use of such Free Writing
Prospectus, except that:
(i) As
to any
Free Writing Prospectus or portion thereof required to be filed that contains
only the description of the final terms of the Securities after such terms
have
been established for all classes of Securities being publicly offered, such
Free
Writing Prospectus or portion thereof may be filed by the Depositor within
two
days of the later of the date such final terms have been established for all
classes of Securities being publicly offered and the date of first use; and
(ii) Notwithstanding
clause (a) above, as to any Free Writing Prospectus or portion thereof required
to be filed that contains only information of a type included within the
definition of ABS Informational and Computational Materials, the Depositor
shall
file such Free Writing Prospectus or portion thereof within the later of two
business days after the Underwriters first provide this information to investors
and the date upon which the Depositor is required to file the Prospectus
Supplement with the Commission pursuant to Rule 424(b)(3) of the Act.
provided
further, that prior to such use of any Free Writing Prospectuses by the
Depositor, the Underwriters must comply with their obligations pursuant to
Section 4(d) and that the Depositor shall not be required to file any Free
Writing Prospectus that does not contain substantive changes from or additions
to a Free Writing Prospectus previously filed with the Commission.
(m) The
Underwriters shall file any Free Writing Prospectus that has been distributed
by
the Underwriters in a manner that could lead to its broad, unrestricted
dissemination not later than the date of first use, provided that if that Free
Writing Prospectus contains only information of a type included within the
definition of ABS Informational and Computational Materials then such filing
shall be made within the later of two business days after the Underwriters
first
provide this information to investors and the date upon which the Depositor
is
required to file the Prospectus Supplement with the Commission pursuant to
Rule
424(b)(3) of the Act; provided further, that the Depositor shall not be required
to file any Free Writing Prospectus that does not contain substantive changes
from or additions to a Free Writing Prospectus previously filed with the
Commission.
15
(n) The
Depositor will cause the Prospectus Supplement to be transmitted to the
Commission for filing pursuant to Rule 424(b) under the Act by means reasonably
calculated to result in filing with the Commission pursuant to said rule. The
Depositor will cause the Prospectus Supplement to be transmitted to the
Commission for filing no later than the close of business on the business day
prior to the Closing Date.
(o) 5.4 If
any
Written Communication or oral statement in connection with the offering of
the
Securities contains an untrue statement of material fact or omits to state
a
material fact necessary to make the statements, in light of the circumstances
under which they were made, not misleading at the time that a Contract of Sale
was entered into, when taken together with all information that was conveyed
to
any person with whom a Contract of Sale was entered into, then the Underwriter
shall provide any such person with the following:
(i) Adequate
disclosure of the contractual arrangement;
(ii) Adequate
disclosure of the person’s rights under the existing Contract of Sale at the
time termination is sought;
(iii) Adequate
disclosure of the new information that is necessary to correct the misstatements
or omissions in the information given at the time of the original Contract
of
Sale; and
(iv) A
meaningful ability to elect to terminate or not terminate the prior Contract
of
Sale and to elect to enter into or not enter into a new Contract of
Sale.
Section
6. Conditions
Precedent to the Obligations of the Underwriters.
The
obligation of the Underwriters to purchase and pay for the Securities of a
Series is subject to the accuracy of the representations and warranties on
the
part of the Depositor herein and in the related Terms Agreement as of the
respective dates thereof and the related Closing Date, to the accuracy of the
statements of officers of the Depositor made pursuant to the provisions hereof
and thereof, to the performance by the Depositor of its obligations hereunder
and thereunder and to the following additional conditions
precedent:
(a) The
Registration Statement shall have become effective not later than 4:00 p.m.,
New
York time, on the day following the date of this Underwriting Agreement or
such
later date as shall have been consented to by the Representative; and prior
to
the related Closing Date no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Depositor, shall
be contemplated by the Commission. If the Depositor has elected to rely upon
Rule 430A of the Rules and Regulations, the price of the Securities of a Series
and any price-related information previously omitted from the effective
Registration Statement pursuant to such Rule 430A shall have been transmitted
to
the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations
within the prescribed time period, and prior to the related Closing Date the
Depositor shall have provided evidence satisfactory to the Representative of
such timely filing, or a post-effective amendment providing such information
shall have been promptly filed and declared effective in accordance with the
requirements of Rule 430A of the Rules and Regulations.
16
(b) The
Depositor shall have delivered on or before the related Closing Date to the
Representative a certificate, dated as of such Closing Date, signed by its
president, a senior vice president or a vice president to the effect that the
signer of such certificate has carefully examined the Registration Statement,
the Prospectus, each related Agreement and this Underwriting Agreement and
related Terms Agreement and that:
(i) to
the
best of such officer’s knowledge, the representations and warranties of the
Depositor in this Underwriting Agreement and the related Terms Agreement are
true and correct in all material respects at and as of such Closing Date with
the same effect as if made on such Closing Date;
(ii) the
Depositor has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to such Closing
Date;
(iii) no
stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been initiated or to the Depositor’s
knowledge, threatened as of such Closing Date; and
(iv) nothing
has come to such person’s attention that would lead such person to believe that
the Prospectus as amended and supplemented as of such Closing Date contains
any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) Since
the
respective dates as of which information is given in the Prospectus and
Prospectus Supplement, there shall not have occurred any material adverse change
or any development involving a prospective material adverse change in or
affecting particularly the business or assets of the related Trust or the
Depositor or any material adverse change in the financial position or results
or
operations of such Trust or the Depositor otherwise than as set forth or
contemplated in the Prospectus and Prospectus Supplement, which in any such
case
makes it impracticable or inadvisable in the Representative’s judgment to
proceed with the public offering or the delivery of the related Securities
on
the terms and in the manner contemplated in the related Terms Agreement and
Prospectus and Prospectus Supplement.
(d) Subsequent
to the execution and delivery of a Terms Agreement, there shall not have
occurred (i) any change, or any development involving a prospective change,
in
or affecting particularly the business, financial condition or properties of
the
Depositor which, in the Representative’s judgment, materially impairs the
investment quality of the related Securities, (ii) any material adverse change
in the financial markets in the United States or any outbreak of hostilities
or
other calamity or crisis, the effect of which is such as to make it, in the
judgment of the Representative, impracticable or inadvisable to market such
Securities or to enforce contracts for the sale of such Securities, (iii) the
suspension of trading generally by either the American Stock Exchange or the
New
York Stock Exchange, or the establishment of minimum or maximum prices or ranges
of prices, by either of such exchanges or by order of the Commission or any
other governmental authority, or any banking moratorium declared by federal
or
New York authorities or (iv) any event that would constitute a default under
such Terms Agreement or this Underwriting Agreement or default in the
performance of the Depositor’s obligations under any related Agreement or which,
with the passage of time or the giving of notice or both, would constitute
such
default.
17
(e) The
Representative shall have received from counsel (who shall be satisfactory
to
the Representative) for the Depositor, an opinion, dated the related Closing
Date, addressed to the Underwriters and satisfactory in form and substance
to
the Representative and to counsel to the Underwriters, with respect to such
matters as the Representative shall reasonably request.
(f) The
Representative shall have received from counsel (who shall be satisfactory
to
the Representative) for each Trustee, an opinion, dated the related Closing
Date, addressed to the Underwriters and the Depositor and satisfactory in form
and substance to the Representative and to counsel to the
Underwriters.
(g) The
Representative shall have received from counsel (who shall be satisfactory
to
the Representative) for each Servicer, an opinion, dated the related Closing
Date, addressed to the Underwriters and the Depositor and satisfactory in form
and substance to the Representative and to counsel to the
Underwriters.
(h) Counsel
to the Depositor shall have furnished to the Representative any opinions
supplied to the rating agencies relating to certain matters with respect to
the
Securities of a Series, which opinions shall also be addressed to the
Underwriters. Drafts of such opinions shall have been furnished to the
Representative no later than five business days prior to the related Closing
Date.
(i) The
Representative shall have received a letter, dated the related Closing Date
and
addressed to the Underwriters, from certified public accountants (who shall
be
satisfactory to the Representative), substantially in the form approved by
the
Representative and counsel to the Underwriters.
(j) All
documents incident to the Agreements, Terms Agreements and this Underwriting
Agreement shall be reasonably satisfactory in form and substance to the
Representative and counsel to the Underwriters; and all actions taken by the
Depositor to authorize the offering and sale of the Securities of a Series
shall
be reasonably satisfactory in form and substance to the Representative and
counsel to the Underwriters; and the Depositor shall furnish the Representative
and counsel to the Underwriters with such other opinions, certificates, letters
and documents as the Representative or counsel to the Underwriters shall
reasonably request.
(k) The
Securities of the related Series shall have received the ratings specified
in
the related Terms Agreement.
18
(l) On
or
prior to the related Closing Date, there has been no downgrading, nor has any
notice been given of (i) any intended or possible downgrading or (ii) any review
or possible changes in rating the direction of which has not been indicated,
in
the rating accorded and originally requested by and paid for by or on behalf
of
the Depositor relating to any previously issued asset-backed securities of
the
Depositor by any “nationally recognized statistical rating organization” (as
such term is defined for purposes of the Exchange Act).
If
any
condition specified in this Section shall not have been fulfilled when and
as
required to be fulfilled, this Underwriting Agreement (with respect to the
related Securities) and the related Terms Agreement may be terminated by the
Representative by notice to the Depositor at any time at or prior to the related
Closing Date, and such termination shall be without liability of any party
to
any other party except as provided in Section 5 hereof.
Section
7. Reimbursement
of Underwriters’ Expenses.
If the
sale of the Securities of a Series is not consummated by reason of any failure,
refusal or inability on the part of the Depositor to perform any agreement
on
its part to be performed, or because any condition of the Underwriters’
obligations hereunder required to be fulfilled shall not have been fulfilled
(other than as a result of any breach or default by the Underwriters), the
Depositor shall be obligated to reimburse the Underwriters for all out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters. For purposes of the preceding sentence, the conditions in clauses
(ii) and (iii) of Section 6(d) shall not be conditions required to be fulfilled
by the Depositor.
Section
8. Indemnification
and Contribution.
(a)
The
Depositor shall indemnify and hold harmless each Underwriter and each person
who
controls any Underwriter within the meaning of Section 15 of the Act as
follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto), or
the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or arising
out of any untrue statement or alleged untrue statement of a material fact
contained in the Definitive Free Writing Prospectus, or in any Issuer
Information contained in any other Free Writing Prospectus, or in any
Underwriter Derived Information to the extent caused by any material error
in
the Pool Information, or in the Registration Statement for the registration
of
the Securities as originally filed or in any amendment thereof or other filing
incorporated by reference therein, or in the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except insofar as
such
losses, claims, damages, or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon any information
with respect to which the Underwriters have agreed to indemnify the Depositor
pursuant to Section 8(a)(ii). This indemnity agreement will be in addition
to
any liability which the Depositor may otherwise have.
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation,
or
any investigation or proceeding by any governmental agency or body, commenced
or
threatened, or of any claim whatsoever based upon any such untrue statement
or
omission, or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of the Depositor (which consent shall
not
be unreasonably withheld); and
19
(iii) against
any and all expense whatsoever (including, subject to Section 8(c) hereof,
the
reasonable fees and disbursements of counsel chosen by the Representative)
incurred in investigating, preparing or defending against any litigation, or
any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided,
however, that this Section 8 shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made (A) in reliance upon and in
conformity with written information furnished to the Depositor by the
Representative expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment
or
supplement thereto) and set forth in the Prospectus and in the Prospectus
Supplement, in each case as specified in the related Terms Agreement, or (B)
in
any ABS Filing or any amendment or supplement thereof, except to the extent
that
any untrue statement or alleged untrue statement therein or omission therefrom
results (or is alleged to have resulted) from an error (a “Pool
Error”)
in the
information concerning the characteristics of the Mortgage Loans furnished
by
the Depositor to the Underwriter in writing or by electronic transmission that
was used in the preparation of any Computational Materials or ABS Term Sheets
(or amendments or supplements thereof) included in such ABS Filing (or amendment
or supplement thereof).
(b) Each
Underwriter severally agrees to indemnify and hold harmless the Depositor,
its
directors, officers who signed the Registration Statement, and each person,
if
any, who controls the Depositor within the meaning of Section 15 of the Act,
against any and all loss, liability, claim, damage and expense described in
the
indemnity contained in subsection (a) of this Section 8, as incurred, but only
with respect to (i) untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendment thereto),
or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Depositor through the Representative expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto), in each case as
specified in the related Terms Agreement, or (ii) any Computational Materials
or
ABS Term Sheets (or amendments or supplements thereof) furnished to the
Depositor by such Underwriter through the Representative pursuant to Section
10
or Section 11, or directly by such Underwriter, to the extent that such
materials were delivered to investors by such Underwriter, and incorporated
by
reference in such Registration Statement or the related Prospectus or any
amendment or supplement thereof (except that no such indemnity shall be
available for any losses, claims, damages or liabilities, or actions in respect
thereof, resulting from any Pool Error), (iii) the Underwriters’ Information and
the decrement/yield tables, (iv) any Underwriter Derived Information, except
to
the extent of any errors in any Underwriter Derived Information that are caused
by errors in the Pool Information, (v) any Free Writing Prospectus for which
the
conditions set forth in Section 4(d)(v) above are not satisfied with respect
to
the prior approval by the Depositor, (vi) any portion of any Free Writing
Prospectus (other than the Definitive Free Writing Prospectus) not constituting
Issuer Information, (vii) any liability resulting from the Underwriters’ failure
to provide any investor with the Definitive Free Writing Prospectus prior to
entering into a Contract of Sale with such investor or failure to file any
Free
Writing Prospectus required to be filed by the Underwriter in accordance with
Section 5(m), and (vii) any liability resulting from the Underwriters’ failure
to comply with Section 4(f) in connection with any road show. This indemnity
agreement will be in addition to any liability which the Underwriter may
otherwise have.
20
The
Depositor acknowledges that the Underwriters’ Information and the
decrement/yield tables constitute the only information furnished in writing
by
or on behalf of the Underwriter expressly for use in the Registration Statement
or the Prospectus or in any amendment thereof or supplement thereto, as the
case
may be.
(c) Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it with respect to
which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise than
on account of this Section 8. An indemnifying party may participate at its
own
expense in the defense of any such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
Section
9. Contribution.
In
order to provide for just and equitable contribution in circumstances in which
the indemnity agreement provided for in Section 8 is for any reason held to
be
unenforceable by the indemnified parties although applicable in accordance
with
its terms, the Depositor, on the one hand, and the Underwriters (as applicable),
on the other, shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said Section 8 incurred
by
the Depositor and one or more Underwriters, as incurred, in such proportions
that each applicable Underwriter is responsible for that portion represented
by
the percentage that the underwriting discount received by it bears to the
initial public offering price of the related Series of Securities, and the
Depositor shall be responsible for the balance; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not
guilty of such fraudulent misrepresentation. Notwithstanding the other
provisions of this Section 9, an Underwriter shall not be required to contribute
any amount in excess of the amount by which the total price at which such
Securities were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. For purposes of this Section 9,
each
person, if any, who controls an Underwriter within the meaning of Section 15
of
the Act shall have the same rights to contribution as such Underwriter and
each
officer of the Depositor who signed the Registration Statement, and each person,
if any, who controls the Depositor within the meaning of Section 15 of the
Act
shall have the same rights to contribution as the Depositor.
Section
10. Computational
Materials and Structural Term Sheets.
(a)
Not
later than 5 p.m., New York time, on the business day before the date on which
the applicable ABS Filing relating to the Securities of a Series is required
to
be filed by the Depositor with the Commission pursuant to Section 5(b) hereof,
the Representative shall deliver to the Depositor a complete copy of all
materials provided by the Underwriters to prospective investors in such
Securities that constitute (i) “Computational Materials” within the meaning of
the no-action letter dated May 20, 1994, issued by the Division of Corporation
Finance of the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇,
Peabody & Co. Incorporated and ▇▇▇▇▇▇ Structured Asset Corporation and the
no-action letter dated May 27, 1994, issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (together, the
“▇▇▇▇▇▇
Letters”),
the
filing of which material is a condition of the relief granted in such letters
(such materials being the “Computational
Materials”)
and
(ii) “Structural Term Sheets” within the meaning of the no-action letter dated
February 17, 1995, issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (the “PSA
Letter”),
the
filing of which material is a condition of the relief granted in such letter
(such materials being the “Structural
Term Sheets”);
prior
to such delivery by the Representative to the Depositor of such materials,
the
Representative shall notify, or cause to be notified, the Depositor or its
counsel by telephone of its intention to deliver such materials and the
approximate date on which such delivery of such materials is expected to
occur.
21
(b) Each
Underwriter represents and warrants to and agrees with the Depositor, as of
the
date of the related Terms Agreement and as of the related Closing Date,
that:
(i) the
Computational Materials furnished to the Depositor pursuant to Section 10(a)
constitute (either in original, aggregated or consolidated form) all of the
materials furnished to prospective investors by such Underwriter prior to the
time of delivery thereof to the Depositor that are required to be filed with
the
Commission with respect to the related Securities in accordance with the ▇▇▇▇▇▇
Letters, and such Computational Materials comply with the requirements of the
▇▇▇▇▇▇ Letters; and
(ii) the
Structural Term Sheets furnished to the Depositor pursuant to Section 10(a)
constitute all of the materials furnished to prospective investors by the
Underwriter prior to the time of delivery thereof to the Depositor that are
required to be filed with the Commission as “Structural Term Sheets” with
respect to the related Securities in accordance with the PSA Letter, and such
Structural Term Sheets comply with the requirements of the PSA
Letter.
(c) If,
at
any time when a prospectus relating to the Securities of a Series is required
to
be delivered under the Act, it shall be necessary to amend or supplement the
related Prospectus and Prospectus Supplement as a result of an untrue statement
of a material fact contained in any Computational Materials or Structural Term
Sheets provided by the Underwriters pursuant to this Section 10 or the omission
to state therein a material fact required, when considered in conjunction with
the related Prospectus and Prospectus Supplement, to be stated therein or
necessary to make the statements therein, when read in conjunction with the
related Prospectus and Prospectus Supplement, not misleading, or if it shall
be
necessary to amend or supplement any ABS Filing relating to any Computational
Materials or Structural Term Sheets to comply with the Act or the Rules and
Regulations, the Representative promptly will prepare and furnish to the
Depositor for filing with the Commission an amendment or supplement that will
correct such statement or omission or an amendment which will effect such
compliance.
22
Section
11. Collateral
Term Sheets.
(a)
Prior to
the delivery of any “Collateral Term Sheet” within the meaning of the PSA
Letter, the filing of which material is a condition of the relief granted in
such letter (such material being the “Collateral
Term Sheets”
and
together with Structural Term Sheets, referred to herein as “ABS
Term Sheets”),
to a
prospective investor in Securities of a Series, the Representative shall, in
order to facilitate the timely filing of such material with the Commission,
notify the Depositor and its counsel by telephone of its intention to deliver
such materials and the approximate date on which the first such delivery of
such
materials is expected to occur. Not later than 2 p.m., New York time, on the
business day immediately following the date on which any Collateral Term Sheet
was first delivered to a prospective investor in such Securities, the
Representative shall deliver to the Depositor a complete copy of all materials
provided by the Underwriters to prospective investors in the Securities that
constitute “Collateral Term Sheets.” At the time of each such delivery, the
Representative shall indicate in writing that the materials being delivered
constitute Collateral Term Sheets.
(b) Each
Underwriter represents and warrants to and agrees with the Depositor as of
the
date of the related Terms Agreement and as of the related Closing Date, that
the
Collateral Term Sheets furnished to the Depositor pursuant to Section 11(a)
constitute all of the materials furnished to prospective investors by such
Underwriter prior to time of delivery thereof to the Depositor that are required
to be filed with the Commission as “Collateral Term Sheets” with respect to the
related Securities in accordance with the PSA Letter, and such Collateral Term
Sheets comply with the requirements of the PSA Letter.
(c) If,
at
any time when a prospectus relating to the Securities of a Series is required
to
be delivered under the Act, it shall be necessary to amend or supplement the
related Prospectus and Prospectus Supplement as a result of an untrue statement
of a material fact contained in any Collateral Term Sheets provided by the
Underwriters pursuant to this Section 11 or the omission to state therein a
material fact required, when considered in conjunction with the related
Prospectus and Prospectus Supplement, to be stated therein or necessary to
make
the statements therein, when read in conjunction with the related Prospectus
and
Prospectus Supplement, not misleading, or if it shall be necessary to amend
or
supplement any ABS Filing relating to any Collateral Term Sheets to comply
with
the Act or the Rules and Regulations, the Representative promptly will prepare
and furnish to the Depositor for filing with the Commission an amendment or
supplement that will correct such statement or omission or an amendment which
will effect such compliance.
Section
12. Default
by One or More of the Underwriters.
If one
or more of the Underwriters shall fail on a Closing Date to purchase the related
Securities which it or they are obligated to purchase under this Underwriting
Agreement and the applicable Terms Agreement (the “Defaulted
Securities”),
the
Representative shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein
set
forth and under the applicable Terms Agreement; if, however, the Representative
shall not have completed such arrangements within such 24-hour period,
then:
23
(a) if
the
principal amount of Defaulted Securities does not exceed 10% of the principal
amount of such Series of Securities to be purchased pursuant to such Terms
Agreement, each of the non-defaulting Underwriters named in such Terms Agreement
shall be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting obligations
thereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if
the
principal amount of Defaulted Securities exceeds 10% of the principal amount
of
such Series of Securities to be purchased pursuant to such Terms Agreement,
the
applicable Terms Agreement shall terminate without liability on the part of
any
non-defaulting Underwriter.
No
action
taken pursuant to this Section 12 shall relieve any defaulting Underwriter
from
liability in respect of its default.
In
the
event of any such default which does not result in a termination of the related
Terms Agreement, either the Representative or the Depositor shall have the
right
to postpone the related Closing Date for a period not exceeding seven days
in
order to effect any required changes in the Registration Statement, Prospectus
or Prospectus Supplement or in any other documents or arrangements.
Section
13. Termination.
This
Underwriting Agreement (with respect to the related Securities) and the related
Terms Agreement shall be subject to termination in the absolute discretion
of
the Representative by notice given to the Depositor prior to delivery of and
payment for all related Securities if prior to such time (i) trading in
securities of the Depositor or any of its affiliates on the New York Stock
Exchange shall have been suspended or limited, or minimum prices shall have
been
established on such exchange, (ii) a banking moratorium shall have been declared
by either federal or New York State authorities, or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other calamity
or
crisis, the effect of which on the financial markets of the United States is
such as to make it, in the reasonable judgment of the Underwriters, impractical
to market such Securities.
Section
14. Survival
of Representations and Obligations.
The
respective indemnities, agreements, representations, warranties and other
statements of the Depositor or its respective officers and of the Representative
set forth in or made pursuant to this Underwriting Agreement and the related
Terms Agreement will remain in full force and effect, regardless of any
investigation or statement as to the results thereof, made by or on behalf
of
any Underwriter, the Depositor or any of their respective representatives,
officers or directors of any controlling person, and will survive delivery
of
and payment for the related Securities.
Section
15. Additional
Underwriting of the Securities.
Each
Underwriter agrees that in connection with any subsequent underwriting of the
non-underwritten Securities acquired from the Depositor or its affiliates,
the
Underwriter:
(a) Will
enter into an underwriting agreement with the Depositor substantially similar
to
this Agreement;
24
(b) Will
provide a copy of the Prospectus Supplement, together with any intervening
amendments thereof and supplements thereto, and copies of all remittance reports
to investors in the non-underwritten Securities, together with any additional
disclosure mutually agreeable to the Underwriter and the Depositor;
and
(c) Will
not
require an underwriting fee.
In
connection with any subsequent underwriting, the Depositor shall provide to
the
Underwriter any additional documentation, letters or opinions as it may
reasonably require, including, without limitation, letters and opinions provided
by counsel to the Issuer updated to reflect the subsequent
underwriting.
Section
16. Notices.
All
communications hereunder will be in writing and:
(i) if
sent
to the Underwriters, will be mailed, delivered or sent by facsimile transmission
and confirmed to the Representative at:
Deutsche
Bank Securities Inc.
▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Asset Backed Securities Group
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇;
(ii) if
sent
to the Depositor, will be mailed, delivered or sent by facsimile transmission,
and confirmed to it at:
Deutsche
Mortgage Securities, Inc.
▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇;
or
to
such other address as the Depositor or the Representative may designate in
writing to the other parties hereto.
Section
17. Successors.
This
Underwriting Agreement will inure to the benefit of and be binding upon the
Underwriters and the Depositor and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and
no
other person will have any right or obligations hereunder.
Section
18. Governing
Law.
THIS
UNDERWRITING AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING
IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK, NEW YORK OVER ANY ACTION
OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS UNDERWRITING AGREEMENT AND ANY
TERMS AGREEMENT, AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF THE ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE OR FEDERAL COURT, AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE
OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING.
25
Section
19. Counterparts.
This
Underwriting Agreement may be executed by each of the parties hereto in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section
20. Performance
of Certain Obligations.
The
Representative agrees to perform certain of the obligations and exercise certain
of the rights of the Depositor, all on behalf of the Depositor, under the
related Agreement, as specified in the related Terms Agreement.
Section
21. Nonpetition
Covenant.
Notwithstanding any prior termination of this Underwriting Agreement or any
Terms Agreement, the Underwriters shall not acquiesce, petition or otherwise
invoke or cause the Depositor or any Trust to invoke the process of any court
or
government authority for the purpose of commencing or sustaining a case against
the Depositor or any Trust under any federal or state bankruptcy, insolvency
or
similar law, or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Depositor or any Trust or any
substantial part of its property, or ordering the winding up or liquidation
of
the affairs of the Depositor or any Trust.
26
If
the
foregoing is in accordance with your understanding, please sign and return
to us
a counterpart hereof, whereupon this letter and your acceptance hereof shall
constitute a binding agreement between the Underwriters and the
Depositor.
Very
truly yours,
DEUTSCHE
MORTGAGE SECURITIES, INC.
By:
Name:
Title:
By:
Name:
Title:
Accepted
in New York, New York,
as
of the
date hereof:
DEUTSCHE
BANK SECURITIES INC.
By:
Name:
Title:
By:
Name:
Title:
Acting
on
behalf of itself and, if applicable,
as
the
Representative of the Underwriters
named
in
the related Terms Agreement.
27
EXHIBIT
A
DEUTSCHE
MORTGAGE SECURITIES, INC.
Mortgage
Backed Securities
SERIES
________
TERMS
AGREEMENT
[Date]
To: Deutsche
Mortgage Securities, Inc., as depositor under the [ ]
Agreement dated as of [Date] (the “Agreement”).
|
Re:
|
Underwriting
Agreement dated August [__], 2003 (the “Standard
Terms”).
|
Series
Designation:
Series
___________.
Terms
of the Series Securities:
Deutsche Mortgage Securities, Inc. Mortgage Pass-Through [Notes] [Certificates],
Series _____, Class____, Class ____ Class ____, Class ____ Class ____ Class
____
and Class ____ [Notes] [Certificates](the “Securities”) will evidence beneficial
ownership interest in a pool of Mortgage Loans having the characteristics
described in the Prospectus Supplement dated the date hereof. Only the Class
____ Class ____, Class ____, Class ____ and Class ____ [Notes]
[Certificates](collectively, the “Offered Securities”) are being sold pursuant
to the terms hereof.
Registration
Statement:
File
Number 33-____.
Ratings:
It is a
condition of closing that at the Closing Date the Class ____ and Class ____
Securities be rated “____” by ________ (“____”) and “____” by ________ (“____”);
that the Class ____ Securities be rated “____” by ____ and “____” by ____; and
that the Class ____ Securities be rated “____” by ____ and “____” by
____.
Terms
of Sale of Offered Securities:
The
Depositor agrees to sell to Deutsche Bank Securities Inc. [and
_______________________________ (the “Underwriter[s]”)] and Deutsche Bank
Securities Inc. [and _______________ each] agree[s][, severally and not
jointly,] to purchase from the Depositor the Offered Securities in the principal
amounts and prices set forth beneath their [respective] name[s] on Schedule
l.
The purchase price for each class of the Offered Securities shall be the
applicable Purchase Price Percentage set forth in Schedule 1 multiplied by
the
applicable principal amount.
Cut-off
Date: [Date]
0
Closing
Date:
10:00
A.M., New York time, on or about [Date]. On the Closing Date, the Depositor
will
deliver the Offered Securities to the Underwriters against payment therefor
at
the offices of __________________________.
Underwriter-Provided
Information:
The
Depositor acknowledges and agrees that the information set forth in (i) the
table immediately following the ______ paragraph under the caption
“Underwriting” in the Prospectus Supplement dated [Date], (ii) the _______ and
______ paragraphs under such caption in such Prospectus Supplement, and (iii)
the table
immediately
following the ______ paragraph under such caption in such Prospectus Supplement,
as such information relates to the Securities, constitute the only information
furnished in writing by or on behalf of the Underwriters for inclusion in the
Registration Statement, the Prospectus or the Prospectus Supplement, and the
Underwriters confirm that such statements are correct.
Performance
of Certain Obligations.
The
Representative agrees to perform the obligations and exercise the rights of
the
Depositor, all on behalf of the Depositor, under Sections ____ and ____ of
the
Agreement.
Incorporation
of the Standard Terms:
Each of
the provisions of the Standard Terms is incorporated herein by reference in
its
entirety and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein and each of
the
representations and warranties set forth therein shall be deemed to have been
made on and as of the date of this Terms Agreement, and the Standard Terms
and
this Terms Agreement shall be construed as, together, one and the same
agreement. Without limiting the foregoing, Sections 16 through 20 of the
Standard Terms are incorporated herein by reference in their
entirety.
Underwriting
Compensation:
[As
applicable].
1
If
the
foregoing is in accordance with your understanding, please sign and return
to us
a counterpart hereof, whereupon this letter and your acceptance hereof shall
constitute a binding agreement between the Underwriter[s] and the
Depositor.
Very
truly yours,
DEUTSCHE
BANK SECURITIES, INC.
By:
Name:
Title:
By:
Name:
Title:
[UNDERWRITER]
By:
Name:
Title:
Accepted
in New York, New York,
as
of the
date hereof:
DEUTSCHE
MORTGAGE SECURITIES, INC.
By:
Name:
Title:
By:
Name:
Title:
2
Schedule
l
|
Class
|
Interest
Rate
|
Initial
Principal
or
Notional
Amount1
|
Purchase
Price
Percentage
|
Approximate
Amount
Purchased
by
Deutsche
Bank
Securities
Inc.
|
Approximate
Amount
Purchased
by
[_____]
|
|
Class
|
$
|
%
|
$
|
$
|
|
|
Class
|
$
|
%
|
$
|
$
|
|
|
Class
|
$
|
%
|
$
|
$
|
|
|
Class
|
$
|
%
|
$
|
$
|
|
|
Class
|
$
|
%
|
$
|
$
|
|
|
Class
|
$
|
%
|
$
|
$
|
|
|
Class
|
$
|
%
|
$
|
$
|
|
|
Class
|
$
|
%
|
$
|
$
|
|
|
Class
|
$
|
%
|
$
|
$
|
|
|
Class
|
$
|
%
|
$
|
$
|
|
|
Class
|
$
|
%
|
$
|
$
|
|
|
Class
|
$
|
%
|
$
|
$
|
|
|
Class
|
$
|
%
|
$
|
$
|
|
|
Class
|
$
|
%
|
$
|
$
|
|
|
Class
|
$
|
%
|
$
|
$
|
|
|
Total/
Wtd
Avg
|
$
|
%
|
$
|
$
|
____________________
1 Approximate
3
EXHIBIT
A
FOOTNOTE
271 INFORMATION
[Excerpt
from Offering Reform adopting release-bold headings added for convenience of
reference]
In
the
case of asset-backed issuers certain information comprehended within the
definition of ABS informational and computational material is analogous to
the
term of securities and is therefore issuer information. For example, we would
expect that the following categories of such material, which are derived from
the definition of ABS informational and computational materials, are generally
issuer information:
(1) Structural
information-factual
information regarding the
asset-backed securities being offered and the structure and basic parameters
of
the securities, such as the number of classes, seniority, payment priorities,
terms of payment, the tax, ERISA or other legal conclusions of counsel, and
descriptive information relating to each class (e.g., principal amount, coupon,
minimum denomination, price or anticipated price, yield, weighted average life,
credit enhancements, anticipated ratings, and other similar information relating
to the proposed structure of the offering);
(2) Collateral
information-factual
information regarding the pool assets underlying the asset-backed securities,
including origination, acquisition and pool selection criteria, information
regarding any prefunding or revolving period applicable to the offering,
information regarding significant obligors, data regarding the contractual
and
related characteristics of the underlying pool assets (e.g., weighted average
coupon, weighted average maturity, delinquency and loss information and
geographic distribution) and other factual information concerning the parameters
of the asset pool appropriate to the nature of the underlying assets, such
as
the type of assets comprising the pool and the programs under which the loans
were originated;
(3) Key
parties information-identification
of key parties to the transaction, such as servicers, trustees, depositors,
sponsors, originators and providers of credit enhancement or other support,
including information about any such party;
(4) Static
pool data-static
pool data, as referenced in Item 1105 of Regulation AB [17 CFR 229.1105], such
as for the sponsor’s and/or servicer’s portfolio, prior transactions or the
asset pool itself; and
(5) Issuer
computational material-to
the
extent that the information is provided by the issuer, depositor, affiliated
depositor, or sponsor, statistical information displaying for a particular
class
of asset-backed securities the yield, average life, expected maturity, interest
rate sensitivity, cash flow characteristics, total rate of return, option
adjusted spread or other financial or statistical information related to the
class or classes under specified prepayment, interest rate, loss or other
hypothetical scenarios. (Where such information is prepared by an underwriter
or
dealer, it is not issuer information, even when derived from issuer
information.)
Exhibit
B
Underwriters’
Information