EXHIBIT 1.1
DEUTSCHE MORTGAGE SECURITIES, INC.
Asset Backed Securities
UNDERWRITING AGREEMENT
Dated [______________]
[_______________]
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 Asset Backed Notes (the "NOTES") and Asset 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 a fractional
undivided interest in 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 Xxxxxx Xxx 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 Mortgage 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
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Supplement, as the case may be, deemed to be incorporated therein by reference
pursuant to Item 12 of Form S-3 under the Act.
(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 (as defined herein), 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).
(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.
(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
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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.
(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.
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(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.
(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 thereto, 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.
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
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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 Company, as indicated in the applicable
Prospectus Supplement.
(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. 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.
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
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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.
(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
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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.
(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;
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(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.
(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.
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
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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.
(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.
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(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.
(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
11
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.
(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 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;
(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
12
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
(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).
(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
13
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 Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Peabody & Co. Incorporated and Xxxxxx 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
"XXXXXX 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
14
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.
(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 Xxxxxx Letters, and such Computational
Materials comply with the requirements of the Xxxxxx 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.
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
15
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:
(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.
16
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. 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:
[________________]
Attention: [________________]
Telephone: [________________]
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.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
17
or to such other address as the Depositor or the Representative may designate in
writing to the other parties hereto.
Section 16. 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 17. 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.
Section 18. 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 19. 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 20. 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.
18
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:
[________________]
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.
19
EXHIBIT A
DEUTSCHE MORTGAGE SECURITIES, INC.
Asset 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 [________________], as amended and restated to
and including [________________] (the "Standard Terms").
SERIES DESIGNATION: Series ___________.
TERMS OF THE SERIES SECURITIES: Deutsche Mortgage Securities, Inc.
Asset Backed [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
[________________] [and _______________________________ (the "Underwriter[s]")]
and [________________]. [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]
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].
A-2
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,
[UNDERWRITER]
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:
A-3
Schedule l
----------
Approximate
Amount Approximate
Initial Purchase Purchased by Amount
Interest Principal Price Deutsche Bank Purchased by
Class Rate Amount1 Percentage Securities Inc. [_____]
-------- --------- ---------- ---------- --------------- -------------
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Total/ $ % $ $
Wtd Avg
______________________
1 Approximate
