Mail Stop 3651
January 13, 2006
Via U.S. Mail
Anna H. Glick, Esq.
Cadwalader, Wickersham & Taft LLP
One World Financial Center
New York, New York 10281
Re: Deutsche Mortgage & Asset Receiving Corporation
Registration Statement on Form S-3
Filed December 15, 2005
File No. 333-130390
Dear Ms. Glick:
We have limited our review of your filing for compliance
with
Regulation AB. Please further note that our limited review covers
only those issues addressed in the comments below. Please note
that
our comments to either the base prospectus and/or the
supplement(s)
should be applied universally, if applicable.
Where indicated, we think you should revise your document in
response to these comments. If you disagree, we will consider
your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
supplemental information so that we can better understand your
disclosure. After reviewing this information, we may raise
additional
comments.
The purpose of our review process is to assist you in your
compliance with the applicable disclosure requirements and to
enhance
the overall disclosure in your filing. We look forward to working
with you in these respects and welcome any questions you may have
about our comments or on any other aspect of our review. Feel
free to
call us at the telephone numbers listed at the end of this letter.
General
1. In the next amendment, please include, to the extent
practicable,
bracketed language showing both where you plan to include
information
in the prospectus supplement and what the substance of that
information will be in terms of compliance with Regulation AB. We
believe this will not only enable us to better review your shelf
filing but that it will also make it less likely that any form
required information will not be inadvertently omitted. See our
related comments below for more guidance.
2. Please confirm that the depositor or any issuing entity
previously
established, directly or indirectly, by the depositor or any
affiliate
of the depositor has been current with Exchange Act reporting
during
the last twelve months with respect to asset-backed securities
involving the same asset class. Please refer to General
Instruction
I.A.4. of Form S-3. Also, please provide us with the CIK codes
for
any affiliate of the depositor that has offered a class of asset-
backed securities involving the same asset class as this offering.
3. Please note that a takedown off of a shelf that involves
assets,
structural features, credit enhancement or other features that
were
not described in the base prospectus will usually require either a
new
registration statement, if to include additional assets, or a
post-
effective amendment. Refer to Rule 409 of the Securities Act,
which
requires that the registration statement be complete at the time
of
effectiveness, except for information that is not known or
reasonably
available. Please confirm for us that the base prospectus
includes
all assets, credit enhancements or other structural features
reasonably contemplated to be included in an actual takedown.
4. Please confirm that all material terms to be included in the
finalized agreements will also be disclosed in the final Rule
424(b)
prospectus, or that finalized agreements will be filed
simultaneously
with or prior to the final prospectus. Refer to Item 1100(f) of
Regulation AB.
5. We note your risk factor disclosure on page S-33 in the
prospectus
supplement. However, we also note on pages 30 and 31 in the base
prospectus that each trust fund that would support payments on the
mortgage backed securities would consist of various types of
multifamily or commercial mortgage loans and/or other mortgage
backed
securities or loan participations. Therefore, it appears static
pool
information on each of the sponsor`s prior securitizations would
provide material information on the prior portfolio performance
and
risk of each trust fund. Please provide us your legal analysis to
support why static pool information on each of the sponsor`s prior
securitizations for the last five years would not be material
information for investors.
6. We note your disclosure in the third paragraph on page S-57.
Please add a separately captioned section to disclose the
affiliations
and certain relationships and related transactions of the
transaction
parties referred to in Item 1119 of Regulation AB.
Cover Page
7. We note that footnotes to the table begin on page S-4.
However, we
cannot locate an explanation for footnotes 10, 11 and 13 as well
as
locate footnotes 9 and 12. Please revise accordingly.
Important Notice About Information Presented, page S-3
8. The information in the prospectus supplement should complement
the
information in the base prospectus by providing more detail but it
should not vary from it. Please delete the last sentence in the
first
paragraph on page S-3.
9. Please use the SEC`s new address: 100 F Street, NE, Washington,
DC
20549.
Table of Contents, page S-6
10. Please add the fees and expenses section you include on pages
S-
101 to S-103 to the table of contents.
Summary of the Prospectus Supplement, page S-9
11. Revise the summary to clearly identify all performance
triggers
that would alter the transaction structure or flow of funds.
Refer to
Item 1103(a)(3)(vii) of Regulation AB.
Certificate Balances, page S-14
12. We note your reference to the "Executive Summary" for the
initial
aggregate certificate balances or notional balance for the
certificates that are not offered in the prospectus supplement.
However, it appears the "Executive Summary" on page S-4 only
provides
information on certificates offered. Please provide the
disclosure on
certificates not offered in the Executive Summary.
Optional Termination, page S-27
13. We note a holder of the securities may exercise an option to
purchase all of the mortgage loans which will effect the
termination
of the trust and retirement of the then outstanding securities.
Please provide us with your analysis regarding this under Rule 3a-
7 of
the Investment Company Act.
The Special Servicer, page S-65
14. Refer to the third paragraph on page S-66. Please tell us the
purpose for the last sentence.
Sale of the Mortgage Loans, page 71
15. A disclaimer of liability for material information provided by
the
issuer or underwriters or any of their affiliates is not
appropriate.
Please revise the disclaimer here, and delete any other similar
disclaimers in the prospectus.
Changes in Mortgage Pool Characteristics, page S-91
16. Refer to the first paragraph on page S-92. Please revise the
required timing for filing the current report pursuant to Item
6.05 of
Form 8-K to four business days. Also, please revise similar
disclosure on page 35 of the base prospectus. See General
Instruction
B.1 of Form 8-K.
The [Identify ... Instrument], page S-119
17. Please add the item reference for disclosure required if the
credit enhancement or liquidity support is 10% or more or if the
significant percentage of the derivatives instrument is 10% or
more.
Refer to Items 1114(b) and 1115(b) of Regulation AB.
18. Please add the item reference for description of the
derivative
instruments. Refer to Item 1115(a) of Regulation AB. Also,
please
add bracketed language for the information that is required by
Item
1115(a)(4) of Regulation AB.
Optional Termination, page S-154
19. It is not clear whether the certificates can be called when
25% or
more of the underlying principal remains outstanding. If so, the
certificates must be titled "Callable." Confirm that you will
follow
that principle and revise your disclosure, as appropriate. Refer
to
Item 1113(f)(2) of Regulation AB.
Use of proceeds, page S-165
20. We also note your reference to "net proceeds." Please
disclose
the amount of expenses payable from offering proceeds and
separately
identify the type and amount of expenses paid to each party.
Refer to
Item 1107(j) of Regulation AB.
Annexes
21. We suggest explicitly incorporating the Annexes into the text
to
remove any misunderstanding that they are not part of the
prospectus
or supplement.
Base Prospectus
Summary of Prospectus, page 7
Repurchase and Substitution of Mortgage Assets, page 13
22. Refer to the second paragraph on page 14. We note you
contemplate
adding a prefunding or revolving period. Please provide bracketed
language in the prospectus supplement showing where you plan to
include disclosure required pursuant to Item 1103(a)(5) of
Regulation
AB.
23. Refer to the first paragraph on page 14. Please tell us how
the
acquisition of new mortgage assets contemplated here meets one of
the
exceptions to the discrete pool requirement under Item 1101(c)(1)
of
Regulation AB. Refer to Item 1101(c)(3) of Regulation AB.
One or More Trust Assets May Also Back Additional Certificates,
page
14
24. Please advise how the structural feature described in this
section
meets the discrete pool requirement under the definition of an
asset-
backed security. Refer to Items 1101(c)(1) and (c)(2)(ii) of
Regulation AB.
Mortgage Loans, page 31
25. Refer to the second full paragraph on page 32. We note that
the
mortgage assets for a particular series of certificates may
include
mortgage loans that are nonperforming. Please note that no non-
performing assets may be part of the asset pool as of the
measurement
date. Refer to Item 1101(c)(2)(iii) and the definition of non-
performing under Item 1101(g) of Regulation AB. Please remove
from
your disclosure the possibility that non-performing assets may be
included in the asset pool.
26. In this regard, we note that you contemplate including
mortgage
loans that are delinquent. Please revise your disclosure to
confirm
that delinquent loans included in the asset pool will be limited
to
less than 20%. Refer to Instruction B.5. to Form S-3. Also,
please
confirm that you will measure delinquency of the loan pursuant to
one
of the methods provided under Item 1101(d) of Regulation AB.
27. Furthermore, describe how delinquencies, charge-offs and
uncollectable accounts are defined or determined. Refer to Item
1100(b)(5) of Regulation AB.
Loan Combinations, page 35
28. Please explain to us the difference between loan combinations
and
loan participations. Also, please tell us the type of disclosure
you
plan to provide on loan combinations in the prospectus supplement.
Mortgage Loan Information, page 35
29. Please include a list of all indices that may be used to
determine
interest payments on ARM loans in an appropriate place in the base
prospectus.
30. Refer to the last paragraph on page 35. Please tell us why
you
would not be able to disclose the information provided under the
bullet points for each of the mortgage loans included in the asset
pool at the time the certificates are initially offered.
MBS, page 36
31. Please revise to disclose how you intend to meet your
registration, disclosure and prospectus delivery obligations under
Securities Act Rule 190 for mortgage participations and mortgage-
backed securities of the depositor included in the asset pool.
Cash Flow Agreements, page 38
32. Please revise the last bullet point in this section to delete
the
phrase "or alter the payment characteristics of cash flows from
the
trust fund" or explain how these agreements would ensure that the
mortgage-backed securities or pool assets will pay in accordance
with
their terms. Also, refer to Item 1115 of Regulation AB for a
description of permissible derivative products.
Description of Credit Support, page 69
General, page 69
33. Please reconcile the list of credit support provided here with
the
list of credit support provided on page 38.
Credit Derivatives, page 71
34. The credit derivatives you describe in this section do not
meet
the definition of asset-backed security under Item 1101(c)(1) of
Regulation AB. Refer to the discussion at Section III.A.2. of the
Regulation AB Adopting Release (Release Nos. 33-8518; 34-50905).
Please delete all references to credit derivatives from your base
prospectus.
Part II
Exhibits
35. Confirm you will file any enhancement or support agreements
and
agreements related to the derivative instruments as exhibits.
Refer
to Instruction 1 to Item 1114(a) and Item 1115(a)(5),
respectively.
36. If available, please provide us with a copy of any updated
pooling
and servicing agreement, marked to show changes from the prior
pooling
and servicing agreement, including any changes you made to comply
with
Regulation AB.
Undertakings
37. Please expand your undertaking provided under Section
A.(1)(ii) to
reflect the expanded undertaking provided under Item 512(a)(1)(ii)
of
Regulation S-K.
Closing
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested supplemental information.
Detailed cover letters greatly facilitate our review. Please
understand that we may have additional comments after reviewing
your
amendment and responses to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed decision. Since the company and its management are in
possession of all facts relating to a company`s disclosure, they
are
responsible for the accuracy and adequacy of the disclosures they
have
made.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that:
? should the Commission or the staff, acting pursuant to
delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
? the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
? the company may not assert staff comments and the declaration
of
effectiveness as a defense in any proceeding initiated by the
Commission or any person under the federal securities laws of the
United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division
of Corporation Finance in connection with our review of your
filing or
in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as a confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and the
Securities
Exchange Act of 1934 as they relate to the proposed public
offering of
the securities specified in the above registration statement. We
will
act on the request and, pursuant to delegated authority, grant
acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendment for further review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
Direct any questions to Hanna Teshome at (202) 551-3315, or
in
her absence, to me at (202) 551-3348.
Sincerely,
Jennifer G.
Williams
Special Counsel
cc: via facsimile
Anna H. Glick, Esq.
Cadwalader, Wickersham & Taft LLP
(212) 504-6666
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Deutsche Mortgage & Asset Receiving Corporation
January 13, 2006
Page 1