[CADWALADER, WICKERSHAM & TAFT LLP LETTERHEAD]
February 7, 2006
Securities and Exchange Commission
Division of Corporation Finance
100 F Street, N.E.
Mail Stop 35-61
Washington, D.C. 20549-4631
Attention: Jennifer G. Williams, Special Counsel
Hanna Teshome, Esq.
Re: Deutsche Mortgage & Asset Receiving Corporation (the "Depositor")
Registration Statement on Form S-3
Filed December 16, 2005
File No. 333-130390
Ladies and Gentlemen:
This letter is being sent to you on behalf of the Depositor in response to your
comment letter dated January 13, 2006. Each heading and numbered response below
corresponds to the same heading and numbered comment in your letter. References
to "Registration Statement" refer to the initial filing of the Registration
Statement made on December 16, 2005 and references to "Am. No. 1" refer to
Pre-Effective Amendment No. 1 to the Registration Statement, filed on the date
of this letter.
General
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1. We note your comment, and have responded to it, as more specifically
indicated in the other responses below.
2. The Depositor has reasonable grounds to believe that the Depositor and each
issuing entity established by it has been current and timely with Exchange
Act reporting during the last twelve months with respect to asset backed
securities involving the same asset class. Within the last twelve months,
no affiliate of the Depositor has offered a class of asset-backed
securities of the same asset class as this offering.
Securities and Exchange Commission
February 7, 2006
3. The Depositor believes that the base prospectus includes all assets, credit
enhancements or other material structural features reasonably contemplated
to be included in a takedown.
4. The material terms of the transaction agreements will be disclosed in the
424 prospectus. In addition, all transaction agreements required to be
filed with the Commission by Regulation AB will be filed by means of a Form
8-K filing within 15 days after the closing of the related transaction.
5. The Depositor believes static pool data is not material to the Depositor's
transactions, for the reasons set forth below. We note, however, that it is
possible, although the Depositor believes unlikely, that, in the future,
circumstances could arise in which static pool data might be material to a
particular transaction. In that event, the Depositor will include static
pool data in the related prospectus supplement.
The disclosure on page S-33 of the Registration Statement sets forth the
reasons that the Depositor believes static pool information is not material
to the Depositor's commercial mortgage backed securities ("CMBS")
offerings, and may in some circumstances even be misleading. The
requirement to provide static pool data is based on the premise that such
information is predictive in nature--that an investor would benefit in
connection with its investment decision by knowing how previous pools of
assets have performed. The Depositor does not believe that the pools that
back CMBS fit that criteria, because knowledge of how previous disparate
pools of commercial mortgage loans have performed is not predictive of, or
relevant to, another different (and perhaps substantially different) pool
of mortgage loans. Unlike in CMBS offerings, static pool data is likely to
be more material to investors in asset backed securities offerings
containing high numbers of relatively homogenous assets underwritten to
specified guidelines (such as residential mortgage loans, credit card
receivables and automobile loans). In these types of asset backed
securities transactions, investors rely, in part, on their assessment of
the originator's underwriting ability, as shown by its disclosed
underwriting criteria for asset origination and by performance of its prior
originations, to judge the credit quality of the assets that are included
in a particular transaction. The homogeneity of loans across pools and the
use of established underwriting criteria for each pool make pool to pool
comparisons material.
In contrast, CMBS transactions include relatively fewer numbers of
non-homogenous pool assets. Each income-producing real property represents
a separate and distinct business venture; and, as a result, each of the
multifamily and commercial mortgage loans included in a CMBS offering
requires a unique underwriting analysis. Moreover, credit underwriting for
commercial mortgage loans differs fundamentally from credit
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Securities and Exchange Commission
February 7, 2006
underwriting for financial assets used to provide consumer credit. Credit
decisions as to secured consumer credit receivables are based on the
creditworthiness of the borrower as well as collateral value. Credit
decisions with respect to unsecured consumer credit receivables are based
primarily on the creditworthiness of the borrower, since there is no
collateral. For consumer credit financial assets, it is the borrower's
income that is expected to service the debt, rather than income from any
collateral. By contrast, debt service on most commercial mortgage loans is
expected to be paid from income produced by the related real property, and
credit decisions are therefore made primarily by evaluating the actual or
potential income of the property as well as the value of the property. Most
CMBS loans are non-recourse loans to single purpose entity borrowers, so
that the borrowers' credit quality is almost entirely irrelevant.
Evaluation of a commercial real estate project will instead be based on
historical and expected future income and expenses of the property, and an
assessment of event risks that may affect such income and expenses. It will
also be based on an assessment of the ability of the net operating income
of the property to service the scheduled payments on the loan (the "debt
service coverage ratio") and the ratio of the loan amount to the appraised
value of the property (the "loan-to-value ratio"), which is an indicator of
whether a sale or refinancing of the mortgage loan will result in
sufficient funds to repay the principal balance of the loan remaining at
maturity.
Accordingly, the disclosure in CMBS offerings focuses on the individual
traits of each commercial loan and the related property, rather than
focusing on uniform underwriting criteria or on past performance of other
pools originated by the sponsor. For example, publicly offered CMBS
transactions typically disclose the net operating income, underwritten net
cash flow, debt service coverage ratio and loan-to-value ratio of the
property (or group of properties) securing each underlying mortgage loan.
In addition, CMBS offerings typically provide investors with information to
help them evaluate the likelihood of the continued performance of the
properties, such as property type, location, age of property, and
information about the largest tenants at the property as well as disclosure
about the risk factors for investing in properties of the types included in
the pools. Other types of asset backed securities transactions have much
less comprehensive disclosure because there is no analogous information
collected or evaluated in the credit process. In CMBS offerings, investors
and rating agencies assess the individual credit quality of the underlying
assets in a manner that would be impracticable and unnecessary for
securities backed by more granular assets underwritten to specified
actuarial parameters.
The immateriality of static pool information in CMBS offerings is
reinforced by the fact that rating agencies do not request static pool
information for prior pools when assigning a rating to a CMBS offering.
Instead, they review detailed asset summaries describing each
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Securities and Exchange Commission
February 7, 2006
loan and related mortgaged property and assign ratings to securities based
on this review and numerous traits of each individual loan and property. In
effect, rating agencies re-underwrite many of the mortgage loans in a CMBS
pool and size credit enhancement for each tranche of CMBS based on their
own assessment of the creditworthiness of loans re-underwritten by them. In
contrast, the rating agencies require extensive information regarding prior
pool performance in residential mortgage backed securities offerings where
it would be virtually impossible to re-underwrite individual mortgage
loans. The Depositor believes that the historic focus of rating agencies
and investors upon the traits of the individual commercial loans and
mortgaged properties that comprise the securitized pool is appropriate and
that the performance of prior pools of commercial mortgage loans is
immaterial.
Moreover, the Depositor is concerned that due to the heterogeneous nature
of CMBS offerings, disclosure of static pool data in such offerings could
be misleading. As we indicated in the disclosure on page S-33 of the
prospectus supplement included in the Registration Statement (and in Am.
No. 1), although there may be certain common factors affecting the
performance and value of income-producing real properties in general, those
factors do not apply equally to all income-producing real properties and,
in many cases, there are unique factors that will affect the performance
and/or value of a particular income-producing real property. Moreover, the
effect of a given factor on a particular real property will depend on a
number of variables, including but not limited to property type, geographic
location, competition, sponsorship and other characteristics of the
property and the related mortgage loan. Furthermore, the performance of a
pool of mortgage loans originated and outstanding under a given set of
economic conditions may vary significantly from the performance of an
otherwise comparable mortgage pool originated and outstanding under a
different set of economic conditions. Because of the highly heterogeneous
nature of the assets in CMBS transactions, static pool data for prior
securitized pools, even those involving the same asset types (e.g., hotels
or office buildings), often will not be indicative of the performance of
other pools, since the economics of the properties and terms of the loans
may be materially different. In particular, static pool data showing a low
level of delinquencies and defaults would not be indicative of the
performance of any pools of mortgage loans originated by the same sponsor
or sponsors. Accordingly, the Depositor believes that investors should
evaluate the mortgage loans underlying each series of offered certificates
independently from the performance of other pools of mortgage loans of the
same sponsor. Encouraging investors to focus on a sponsor's prior
origination experience in a context where so much more relevant disclosure
is available may cause investors to improperly substitute reliance on the
sponsor's track record for an independent evaluation by such investor of
information that is much more directly pertinent. The Depositor is
concerned that disclosure of static pool
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Securities and Exchange Commission
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information concerning the strong performance of loans originated in the
past by a particular sponsor could have a potential to mislead investors in
a market where much more probative disclosure is available to help them
make their investment decisions. Here, more than ever, past performance is
not necessarily indicative of future performance.
We note that during the comment period for Regulation AB, participants in
the CMBS industry sent comment letters to the Commission taking the
position that static pool data was not material in the context of CMBS
offerings. See for example, the letter of the Commercial Mortgage
Securities Association dated July 12, 2004 and the letter of the American
Securitization Forum dated July 30, 2004. The instructions to item 1105
require provision of static pool information "unless the registrant
determines that such information is not material." In the final release
adopting Regulation AB, the Commission stated, that while it did not
believe it appropriate to exclude particular asset classes or transactions
from the static pool information requirement in their entirety in lieu of
requiring issuers to make a materiality determination, "in all instances
disclosure was conditioned on what would be material for the particular
asset class, sponsor and asset pool involved...We recognize.. that there
may be transactions where static pool data is not material." Accordingly,
the Depositor respectfully submits that static pool data should not be
required to be included in the registration statement or prospectus.
6. In Am. No. 1 we have added a separate captioned section containing the
disclosure required by Item 1119 (see page S-69 of prospectus supplement in
Am. No. 1).
Cover Page
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7. The footnotes have been revised.
Important Notice about Information Presented
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8. The language cited has been deleted both on page S-3 of the prospectus
supplement and on page 2 of the base prospectus included in Am. No. 1. In
addition, on page 2 of the base prospectus included in Am. No. 1 the
following language has been added:
Investors reviewing this prospectus should also carefully review the
information in the related prospectus supplement in order to determine
the specific terms of each offering.
9. We have made the indicated change to the Commission's address (pages S-3
and S-166 in the prospectus supplement, and on page 2 of the base
prospectus in Am. No. 1).
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Securities and Exchange Commission
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Table of Contents
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10. The fees and expenses section has been added to the Table of Contents.
Summary of the Prospectus Supplement
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11. The Depositor believes that the type of structure described in Item 1103(a)
(3)(vii) (and also referred to in Item 1113(a)(7)), while sometimes found
in other types of asset backed securities, is not applicable to CMBS. While
there are events (such as sale of a defaulted loan or repurchase of a
mortgage loan due to a breach of representation or warranty) that may lead
to liquidation or amortization of an individual mortgage loan, CMBS
transaction structures do not provide for liquidation or early amortization
of the pool of loans as a whole. However, we have added bracketed language
on pages S-27 and S-155 of the prospectus supplement in Am. No. 1 to
provide for disclosure if such a structure is used in the future. CMBS
structures may include optional termination provisions leading to
liquidation of the pool at a point where the pool has been reduced to a
specified percentage (typically less than 10%) of its original balance, as
disclosed on page S-27 and S-155 of the prospectus supplement in Am. No. 1
under the caption "Optional Termination."
Certificate Balances
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12. The Executive Summary on page S-4 of the prospectus supplement in Am. No. 1
has been revised to include the non-offered certificates (other than
residual certificates).
Optional Termination
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13. An issuer relying on Rule 3a-7 may not issue redeemable securities. A
"Redeemable Security" is defined as "any security, other than short-term
paper, under the terms of which the holder, upon its presentation to the
issuer or a person designated by the issuer, is entitled (whether
absolutely or only out of surplus) to receive its proportionate share of
the issuer's current net assets, or the cash equivalent thereof."
The language set forth in the first sentence on page S-27 under "Optional
Termination" is typically intended to permit a "cleanup call" at a point
when the mortgage loans in the trust fund have been reduced to a specified
percentage (typically less than 10%) of their initial principal balance.
The Depositor believes that this feature does not cause the certificates to
constitute "redeemable securities" for purposes of Rule 3a-7 because the
right to cause an optional termination is not an ongoing right of any
particular class of certificates but is exercisable
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Securities and Exchange Commission
February 7, 2006
only at the time that the trust fund has diminished to the specified de
minimis amount and only by the Class that constitutes the most subordinate
class of certificates at that time.
The Depositor believes that the provisions under the third sentence on page
S-27 under "Optional Termination" also do not cause any class of
certificates to constitute "redeemable securities." Such provisions permit
an exchange of the non-public classes of certificates for the mortgage
loans only under the limited circumstances that (i) all of the public,
investment grade certificates (which typically have an initial principal
balance equal to 90% or more of the principal balance of the loans in the
transaction) are no longer outstanding, and (ii) the non-public classes of
certificates are owned by a single holder or unanimously voted.
Accordingly, there is no class of certificates as to which the holder may
receive the net assets at any time "upon presentation to the issuer," but
rather, during the limited time period when no public or investment grade
certificates are outstanding (at which point the mortgage loans will have
been reduced to less than 10% of their initial balance), and in the limited
circumstance that all the non-public certificates are owned by a single
holder or unanimously voted, such non-public certificates may be exchanged
for the mortgage loans.
The Special Servicer
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14. The cited language is often requested by servicers, on the basis that
servicers do not originate the mortgage loans or issue the certificates,
nor are they responsible for drafting the pooling and servicing agreement
(other than to negotiate their own rights and obligations) or prospectus
supplement (other than disclosure regarding themselves). Accordingly,
servicers may request that such disclaimer language be included to clarify
the foregoing. However, each servicer typically does make representations
regarding the validity of the pooling and servicing agreement as against
itself and as to the accuracy of the disclosure regarding itself, and the
cited language has been modified to reflect this (see page S-66 of the
prospectus supplement in Am. No. 1), and similar changes have been made to
trustee disclaimers in Am. No. 1.
Sale of the Mortgage Loans
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15. We have revised the disclaimer as indicated (see page S-71 of the
prospectus supplement in Am. No. 1). We have not found any other similar
disclaimers in the prospectus supplement or base prospectus.
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Changes in Mortgage Pool Characteristics
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16. If any material pool characteristic of the actual mortgage pool differs by
5% or more (other than by reason of the mortgage loans converting into cash
in accordance with their terms) from the description of the mortgage pool
in the final prospectus supplement filed with the Commission, a Current
Report on Form 8-K reporting such event will be filed pursuant to Item 6.05
of Form 8-K no later than four business days after the initial issuance of
the Offered Certificates. We have revised the disclosure (now on page S-92
of the prospectus supplement in Am. No. 1) to reflect this. However, in the
event that the foregoing circumstance does not occur, the Depositor will
file the Form 8-K attaching the related pooling and servicing agreement and
any other required exhibits within the traditional permitted time frame of
15 days following the initial issuance of the certificates.
The [Identify...Instrument]
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17. We have added the item references requested on page S-119 of the prospectus
supplement in Am. No. 1.
18. We have added the item reference and disclosure regarding "significance
percentage" on page S-119 of Am. No. 1.
Optional Termination
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19. The Depositor confirms that the certificates will include the word
"Callable" in their title if they can be called when 25% or more of the
original principal balance of the mortgage pool remains outstanding.
Language confirming this understanding has been added (see pages 13 and 50
of the base prospectus in Am. No. 1).
Use of Proceeds
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20. The prospectus supplement contains bracketed language responsive to the
disclosure under Item 1107(j) of Regulation AB in the section titled "The
Issuing Entity" (page S-63 of the prospectus supplement in Am. No. 1).
However, the Depositor believes that this item will generally not be
applicable to the Depositor's transactions. The Depositor believes that
there are no expenses payable from offering proceeds that are specifically
allocable to the selection of assets (there is generally not a detailed
selection process, because the assets included in the trust funds will
typically have been originated for securitization and with the aim of
securitizing them in the next available transaction) or their acquisition
by the issuing entity.
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Annexes
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21. We have added language on page S-3 of the prospectus supplement in Am. No. 1
expressly incorporating the annexes.
Base Prospectus
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Summary of Prospectus
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Repurchase and Substitution of Mortgage Assets
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22. We have added bracketed language on pages S-25 and S-70 in the prospectus
supplement indicating where disclosure regarding a revolving period or
prefunding period would be located.
23. The Depositor has not to date used, and is unaware of any other CMBS
issuance that has used, one of the features described on page 14 of the
Registration Statement and Am. No. 1. In the event that the Depositor uses
such a feature, such feature will be structured so that the related
certificates will fall within the definition of "asset-backed security" in
Item 1101(c) of Regulation AB, including by using one of the exceptions to
the "discrete pool" requirement set forth in Item 1101(c)(3).
One or More Trust Assets May Also Back Additional Certificates
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24. The Depositor has not to date used, and is unaware of any other CMBS
issuance that has used, one of the features described on page 14 of the
Registration Statement and Am. No. 1. In the event that the Depositor uses
such a feature, such feature will be structured so that the related
certificates will fall within the definition of "asset-backed security" in
Item 1101(c) of Regulation AB, including by using one of the exceptions to
the "discrete pool" requirement set forth in Item 1101(c)(3).
Mortgage Loans
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25. The language regarding inclusion of nonperforming loans has been deleted.
26. Language has been added on page 32 of the base prospectus in Am. No. 1.
stating that delinquent loans will constitute less than 20% of the related
pool by dollar volume. The Depositor confirms that delinquency will be
measured pursuant to one of the methods provided under Item 1101(d) of
Regulation AB.
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27. The Depositor believes that none of its securitizations to date have
included loans that were delinquent at the time of the securitization, and
does not anticipate depositing any loans that are delinquent into its
typical transactions. However, in the event that the Depositor elects in
the future to deposit delinquent loans into a transaction, the Depositor
will include the disclosure under Item 1100(b)(5). We have included an
example of such disclosure in brackets on pages S-71 to S-72 of the
prospectus supplement in Am. No. 1.
Loan Combinations
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28. Loan Combinations consist of two or more mortgage loans secured by the same
property, each of which is a direct obligation of the borrower evidenced by
a separate promissory note. Unlike a Loan Combination, a loan participation
does not represent a direct obligation of the borrower evidenced by a
separate promissory note. Rather, a loan participation represents a
beneficial ownership interest in a single promissory note executed by the
borrower. The lender under the promissory note will create participations
in a mortgage loan as a means to sell an interest in all or a portion of
the mortgage loan to one or more other lenders without the issuance of new
promissory notes by the borrower. Mortgage loans that are part of Loan
Combinations are commonly included as part of the asset pool in CMBS
transactions. If a loan that is part of a Loan Combination is included in
the mortgage pool, the related prospectus supplement will describe the
payment terms and priorities of each mortgage loan included in the Loan
Combination and the enforcement rights of each such mortgage loan.
Mortgage Loan Information
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29. Disclosure has been added on page 35 of the base prospectus in Am. No. 1
listing indexes that may be used, and confirming that any other index used
will be specified in the related prospectus supplement and will be an index
reflecting interest paid on a debt, and not a commodities or securities
index.
30. The cited language has been deleted (the related paragraph is on page 36 of
the base prospectus in Am. No. 1).
MBS
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31. In the section of the base prospectus titled "Description of the Trust
Funds--MBS," the second full paragraph (on page 36 of the base prospectus
in both the Registration Statement and Am. No. 1) states:
Each MBS included in a mortgage asset pool either will have been
previously registered under the Securities Act of 1933, as amended, or
each of the following will have been satisfied with respect to the MBS:
(1) neither the issuer of the MBS nor any of its affiliates has a
direct or indirect agreement, arrangement, relationship or
understanding relating to the MBS and the related
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Securities and Exchange Commission
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series of securities to be issued; (2) neither the issuer of the MBS
nor any of its affiliates is an affiliate of the sponsor, depositor,
issuing entity or underwriter of the related series of securities to be
issued and (3) the depositor would be free to publicly resell the MBS
without registration under the Securities Act of 1933, as amended.
Cash Flow Agreements
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32. Item 1115 states that such item "relates to derivative instruments, such as
interest rate and currency swap agreements, that are used to alter the
payment characteristics of the cashflows from the issuing entity and whose
primary purpose is not to provide credit enhancement related to the pool
assets or the asset-backed securities." We note also that Section III.A.2
of the adopting release for Regulation AB states that synthetic
securitization transactions are prohibited, but that interest rate or
currency swaps covering either or both of the principal payments or
interest payments on assets in the pool and that are designed to reduce or
alter risk resulting from those assets are permitted, provided that the
return on the ABS is still based primarily on the performance of the
financial assets in the pool. Instruction 2 to Item 1115 states "This Item
should not be construed as allowing anything other than an asset-backed
security whose payment is based primarily by reference to the performance
of the receivables or other financial assets in the asset pool." The
Depositor will not include in the asset pool any derivative agreement that
could be used to create an asset-backed security whose payment is not based
primarily by reference to the performance of the receivables or other
financial assets in the asset pool.
Description of Credit Support
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General
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33. The list under "Description of Credit Support" (now on page 70 of the base
prospectus included in Am. No. 1) has been conformed to the list under
"Description of the Trust Funds--Credit Support" (on page 38 of the base
prospectus included in Am. No. 1). The paragraphs describing those
instruments have been re-ordered.
Credit Derivatives
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34. Item 1114 of Regulation AB contemplates the use of "any derivatives whose
primary purpose is to provide credit enhancement related to pool assets or
the asset-backed securities." Section III.A.2 of the adopting release for
Regulation AB states that synthetic securitization transactions are
prohibited, but that interest rate or currency swaps covering
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Securities and Exchange Commission
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either or both of the principal payments or interest payments on assets in
the pool are permitted, and further provides in footnote 68 thereto:
As another example of a swap or other derivative permissible in an ABS
transaction, a credit derivative such as a credit default swap could be
used to provide viable credit enhancement for asset-backed securities.
For example, a credit default swap may be used to reference assets
actually in the asset pool, which would be analogous to buying
protection against losses on those pool assets. The issuing entity
would pay premiums to the counterparty (as opposed to the counterparty
paying the premiums to the issuing entity). If a credit event occurred
with respect to a referenced pool asset, the counterparty would be
required to make settlement payments regarding the pool asset or
purchase the asset to provide recovery against losses.
Any credit derivatives included by the Depositor in one of its trust funds would
be structured to reduce risk on the related assets in the trust fund, and not to
create a synthetic securitization.
Part II
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Exhibits
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35. The Depositor will file any enhancement or support agreements and
agreements related to derivative instruments, as required by Regulation AB,
within 15 days after the closing of the related transaction.
36. A form of Pooling and Servicing Agreement is being filed as an exhibit to
Am. No. 1. The primary provisions of such Pooling and Servicing Agreement
that relate to compliance with the Exchange Act requirements of Regulation
AB are contained in Article XI and Section 4.02.
Undertaking
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37. The undertaking has been revised as indicated.
Very truly yours,
/s/ Anna H. Glick
Anna H. Glick
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