Asset-Backed Securities

Question: An affiliate or subsidiary (each as defined in Securities Act Rule 405) of a person described in paragraph (i) of the “securitization participant” definition in Securities Act Rule 192(c) has access to or receives information that is publicly available on EDGAR about the relevant asset-backed security or the asset pool underlying or referenced by the relevant asset-backed security prior to the first closing of the sale of the relevant asset-backed security. Does access to, or receipt of, information that is publicly available on EDGAR, by itself, result in the affiliate or subsidiary being a securitization participant under paragraph (ii)(B) of the “securitization participant” definition in Rule 192(c)?

Answer: No. [Jul. 31, 2024]

Question: In order to use Form SF-3 for an offering of asset-backed securities, a registrant must meet the eligibility requirements in General Instruction I. A. of the form. General Instruction I.A.1. requires, in part, that specified documents and transaction agreements must have been filed on a timely basis. When must the required documents and agreements be filed to be considered timely for purposes of Form SF-3 eligibility?

Answer: Item 1100(f) of Regulation AB specifies that final agreements must be filed and made part of the registration statement no later than the date the final prospectus is required to be filed under Rule 424. Instruction to Paragraph (b) of Rule 424, which applies only to asset-backed securities offerings, specifies that a prospectus filed pursuant to Rule 424(b)(2) or Rule 424(b)(5) must be filed no later than the second business day following the date it is first used. For purposes of this instruction only, “first use” of the final prospectus in asset-backed securities offerings would include its use at time of sale to satisfy an issuer’s obligations under Securities Act Section 5(b) to provide a Section 10(a) prospectus at or prior to the time of sale. Accordingly, the required documents and agreements would be considered timely if filed no later than the second business day following first use of the final prospectus.

For example, if the date of sale of a tranche of securities in an asset-backed securities offering under Rule 415(a)(vii) or (xii) is Tuesday, May 2, then the requirements of Rule 424(b)(2) or Rule 424(b)(5), and the conditions of Securities Act Rule 172, would be met if the registrant filed the final prospectus no later than Thursday, May 4. Therefore, the required documents and agreements must also be filed no later than Thursday, May 4, to be deemed timely under General Instruction I.A.1 of Form SF-3. [August 30, 2023]

Question: What is the appropriate Securities Act form to register an offering of securities that are backed by securitization property which includes the right to assess and collect certain special charges on customers’ public utility bills (“public utility securitizations”)? What are the appropriate forms for periodic and current reporting under the Exchange Act for public utility securitizations?

Answer: Public utility securitizations that are structured as stand-alone trusts meet the definition of “asset-backed security” (“ABS”) in Item 1101(c) of Regulation AB (“Regulation AB ABS”) (see, e.g., Asset-Backed Securities, Release No. 33-9117 (Apr. 7, 2010) (75 FR 23328, 23360 [May 3, 2010]) and Asset-Backed Securities Disclosures and Registration, Release No. 33-9638 (Sept. 4, 2014) (79 FR 57184, 57196 [Sept. 24, 2014]) (excluding “stranded cost ABS” [i.e., public utility securitizations] from the requirement to provide asset-level data). Therefore, these securitizations must be registered on Form SF-1.

Other public utility securitizations are structured as so-called “series trusts” where multiple series of unrelated securities are issued by a single issuing entity. Such series trust securitization issuances, as well as issuances by the stand-alone trusts referred to above, meet the broader definition of “asset-backed security” in Exchange Act Section 3(a)(79) (“Exchange Act ABS”) (see, e.g., 17 CFR 246.19(b)(8) and Credit Risk Retention, Release No. 34-73407 (Oct. 21, 2014) (79 FR 77602, 87672 [Dec. 24, 2014]) (exempting from the credit risk retention requirements “any securitization transaction where the asset-back securities issued in the transaction are secured by the intangible property right to collect charges for the recovery of specified costs” [i.e., public utility securitizations]). Consistent with this Commission precedent, the staff has advised issuers in public utility securitizations that are structured as series trusts to register offers and sales of securities on Form SF-1.

Similarly, the appropriate forms for periodic reporting for issuers of both Regulation AB ABS and registered Exchange Act ABS, including public utility securitizations that are structured as series trusts, are Form 10-K for annual reports (following General Instruction J of such form), Form 8-K for current reports (following General Instruction G of such form), and Form 10-D for distribution reports, filed in compliance with the applicable provisions of Regulation AB.

Lastly, since public utility securitizations structured as series trusts are Exchange Act ABS, such series trust issuers should refrain from making statements in their filings that they are not asset-backed issuers or that their securities are not asset-backed securities, as such statements would not be accurate. [May 16, 2025]

Question: Does the MP Environmental Funding LLC, PE Environmental Funding LLC no-action letter (Sept. 19, 2007) (“the MPE Letter”) stand for the proposition that public utility securitizations structured as series trusts are not “asset-backed securities”?

Answer: No. The MPE Letter stated that public utility securitizations structured as series trusts are not “asset-backed securities” as defined in Item 1101 of Regulation AB (i.e., are not Regulation AB ABS), but permitted issuers to file Exchange Act reports on Forms 10-K, 8-K, and 10-D as if such securitizations were Regulation AB ABS. At the time the MPE Letter was issued, both corporate and ABS issuers filed registration statements on Forms S-1 or S-3. As such, the letter did not need to address whether these were the proper Securities Act registration forms for public utility securitizations.

Two developments since the MPE Letter was published in 2007 have affected the position taken in the letter. First, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 added the Exchange Act ABS definition, which is broader than the Regulation AB ABS definition because, in relevant part, it does not exclude securitizations structured as series trusts. Additionally, in 2014, the Commission created Forms SF-1 and SF-3 specifically for registering offers and sales of ABS.

Consistent with the MPE Letter and Commission precedent cited in Question 112.01, the staff has advised issuers of public utility securitizations structured as series trusts to file registration statements on Form SF-1 since the form was implemented. As stated in Question 112.01, staff has also continued to advise such issuers that their Exchange Act reports should be filed on Forms 10-K, 8-K, and 10-D as if such securitizations were Regulation AB ABS.

Question 112.01, therefore, supersedes the MPE Letter by clarifying the staff’s position in light of developments following the publication of the MPE Letter in 2007. [May 16, 2025]

Rule 12b-25(d) prohibits a registrant from using a Securities Act registration statement the use of which is predicated on timely filed reports until the subject report is actually filed pursuant to Rule 12b-25(b)(3). A depositor as defined in Item 1101(e) may create a new issuing entity and conduct a takedown off an effective Form SF-3 between the filing of a 12b-25 notice and the 12b-25 extended due date of the periodic report. [12/09/14]

If an asset-backed issuer has a trustee or bond administrator that calculates the waterfall, that party is participating in the servicing function and therefore pursuant to Rules 15d-18 and 13a-18 the issuer’s Form 10-K must include a Report on Assessment of Compliance with Servicing Criteria from the trustee or bond administrator along with the related attestation report. If the trustee or bond administrator does not calculate the waterfall but only receives allocations or distributions from a servicer and makes allocations and distributions to holders of the asset-backed securities out of the calculated amounts, and does not otherwise perform the functions of a servicer, the Form 10-K would not need to include a Report on Assessment of Compliance with Servicing Criteria from the trustee or bond administrator nor an attestation report. [12/30/05]

Pursuant to Rule 13a-18 and Rule 15d-18, a Form 10-K must include from each party participating in the servicing function (even parties participating for only a portion of the year) a report regarding its assessment of compliance with the servicing criteria specified in Item 1122(d) of Regulation AB as of and for the period ending the end of each fiscal year. A report must be included for every person participating in the servicing function except that the notes to Rules 13a-18 and 15d-18 provide a de minimis exception. If a servicer’s activities relate to only 5% or less of the pool assets no report is required. Since the report is for the fiscal year, the measurement for this de minimis threshold must take into account the servicing function for the entire period covered by the Form 10-K and not a particular point in time. For example, assets are transferred to an issuing entity with a calendar year end in a closing on March 1st, so that the trust has a reporting obligation for 10 months of the year. The trust has three servicers. Servicer A serviced 50% of the assets for the entire 10 months, Servicer B serviced 40% of the assets for the same length of time and Servicer C serviced 10% of the assets for the first two months. On May 1st Servicer C is replaced by Servicer D. Servicer C serviced only 10% of the pool for only one fifth of the year. As such, Servicer C serviced 2% of the assets for the period and falls below the de minimis requirements in Item 1122 and no report is required. Servicer D serviced 8% of the assets for the period and Servicer’s D report must be included in the Form 10-K. [12/09/14]

Pursuant to Rules 13a-18 and 15d-18, an annual report on Form 10-K must include a report from each party participating in the servicing function regarding its assessment of compliance with servicing criteria specified in Item 1122 of Regulation AB. For the purposes of this assessment, a servicer’s platform may, but is not required to, include transactions registered before compliance with Regulation AB was required or that involved an offer and sale of asset-backed securities that were not required to be registered. Absent changes in circumstances, such as a merger between servicers, it is expected that the grouping of transactions included in a platform should remain constant from period to period. Suspension of Exchange Act reporting obligations for a transaction that was subject to Regulation AB does not result in the exclusion of that transaction from the platform. The servicer must use the criteria contained in Item 1122(d) of Regulation AB to assess the servicing of any transaction in the platform. [12/09/14]

A vendor engaged by a servicer to perform specific and limited activities or to perform activities prescribed by the servicer would not be viewed as a party participating in the servicing function separate and apart from the servicer engaging such vendor, and would not need to submit separate assessment and attestation reports for inclusion in the related asset-backed issuer’s Form 10-K report if:

• The vendor is not a “servicer” as defined in Item 1101(j) of Regulation AB;
• The servicer engaging and monitoring the vendor elects to take responsibility for assessing compliance with the servicing criteria applicable to that vendor in the servicer’s report regarding assessment of compliance with servicing criteria;
• The servicer engaging the vendor has policies and procedures in place designed to provide reasonable assurance that the vendor’s activities comply in all material respects with the servicing criteria applicable to the vendor; and
• The servicer’s report on assessment of compliance discloses:
  • the servicing criteria or portion of servicing criteria applicable to the vendor’s activities for which the servicer is assuming responsibility;
  • any material instance of noncompliance by the vendor that the servicer identifies or of which it is aware; and
  • any material deficiency that is identified in the servicer’s policies and procedures to monitor the vendor’s compliance.

In this situation, consistent with Item 1122(d)(1)(ii) of Regulation AB and Instruction 2 to Item 1122 of Regulation AB, the requirement to assess compliance with the servicing criteria applicable to a vendor’s activities is satisfied if the servicer has instituted policies and procedures to monitor whether such vendor’s activities comply in all material respects with such criteria. Compliance with the applicable servicing criteria is achieved if those policies and procedures are designed to provide reasonable assurance that such vendor’s activities comply with such criteria and those policies and procedures are operating effectively. [12/09/14]

For purposes of Rule 15Ga-1, an “originator” is, as defined in Section 15G(a)(4) of the Exchange Act, the person who, through the extension of credit or otherwise, creates a financial asset that collateralizes an asset-backed security, and sells an asset directly or indirectly to a securitizer. [12/09/14]

The Form 10-K must be signed either by the depositor or by the servicer on behalf of the issuing entity. If the servicer is signing and multiple servicers are involved in servicing the assets, the master servicer must sign. A trustee that is a servicer may not sign an Exchange Act report for the depositor unless it is the master servicer. [12/09/14]

Item 7 of Form 10-D refers to Items 1114 and 1115 of Regulation AB and requires updated information regarding a provider of a credit enhancement or derivative instrument supplier. Therefore, if at the end of the period for which the Form 10-D is filed either provider meets the thresholds of those items, disclosure is required, even if the provider did not previously meet such threshold. Item 6 of Form 10-D refers to Item 1112 of Regulation AB and requires updated information regarding significant obligors. Instruction 4 to the definition of significant obligor in Item 1101(k) of Regulation AB specifically notes that, if an obligor falls below 10% subsequent to the cut-off date, the obligor would no longer be considered a significant obligor. This would be the case even if the obligor subsequently moves back above the 10%. There is no similar provision related to the Item 7 requirements, so the determination as to whether or not the disclosure is required must be made at the end of the period, even if the provider or source has previously fallen below the threshold. See also Item 6.03 of Form 8-K. [12/30/05]

Item 1100(b) provides requirements for presentation of historical delinquency and loss information that is called for by provisions in Regulation AB. For this information the delinquency experience must be presented in 30 or 31 day increments, as applicable, through the point that assets are written off or charged off as uncollectible. For instance, Item 1111(c) of Regulation AB requires disclosure of delinquency and loss information for the asset pool being securitized. This delinquency or loss information required by Item 1111(c) regarding the pool being securitized must be disclosed in the increments outlined in Item 1100(b) through the point that the assets are written-off or charged-off as uncollectible. Many issuers choose to include information not required by 1111(c), such as historical delinquency information for an asset group other than the asset pool (such as a managed or total portfolio, servicer portfolio, etc.). Where such additional information is not called for by a specific Item requirement of Regulation AB, the information may be disclosed in a manner other than that provided in Item 1100(b). [12/09/14]

The definition of servicer in Regulation AB is a principles-based definition that looks to the functions that the entity performs. See SEC Release No. 33-8518 Section V.D. An entity falls within the definition of servicer if it is responsible for the management or collection of the pool assets or making allocations or distributions to holders, regardless of the entity’s title (vendor, trustee, etc.). [12/09/14]

Under Item 1108, an issuer must include disclosure regarding any party, including third-party vendors, that meets the definition of a servicer (i.e., is involved in the management or collection of the pool assets or is making allocations or distributions to holders of the asset-backed securities) and meets the 20% threshold test. The disclosure required, however, only extends to information material to the servicing function the party performs for the pool assets. For example, some of the disclosure requirements for a primary servicer, such as experience in servicing payments for a particular asset type, may not be material for a third-party vendor that solely provides the lockbox function for payments received on 100% of the assets located in the asset pool. Thus, disclosure under each category of information for each servicer may not be required. [12/09/14]

The disclosure of a servicer’s procedures under Item 1108 should be limited to that which a reasonable investor would find material in considering an investment in the asset-backed securities and the servicing and administration of the pool assets and the asset-backed securities. The description of servicers’ operating procedures should not include immaterial or technical data that obscures the material disclosure. [12/09/14]

Item 1108(a) of Regulation AB requires disclosure of certain information if an unaffiliated servicer services 10% or 20% or more of the pool assets. The disclosure required by this item must be included in the registration statement. The calculation of the 10% and 20% thresholds in Item 1108(a) should be made as of the designated cut-off date for the transaction. [12/30/05]

A change in the servicer for a particular servicing function from the entity that was disclosed in the initial registration statement must be disclosed if the new servicer meets the criteria of Item 1108(a)(2). The issuer must disclose the change and related disclosure regarding the new servicer on a current report on Form 8-K within the time period allowed by that Form, or under Item 8 of Form 10-D, as appropriate. If there is a material change in the servicer’s procedures from the disclosure provided in the prospectus, there is no requirement that the revised servicing procedures be disclosed in the Exchange Act periodic or current reports unless the information relates to the distribution and pool performance information that Form 10-D requires or if the disclosure is of a material fact necessary to make the rest of the disclosure not misleading. [12/09/14]

Item 1108(b)(4) requires disclosure of information regarding the servicer’s financial condition to the extent that there is a material risk that the effect on one or more aspects of servicing resulting from such financial condition could have a material impact on pool performance or performance of the asset-backed securities. Where disclosure is required, the type and extent of information regarding the servicer’s financial condition would depend upon the particular facts. Information does not have to include the financial statements of the servicer, unless the financial statements are necessary for investor understanding of the servicer’s condition. [12/30/05]

Historical delinquency information for the subject asset pool is always required under this item. If an issuer determines that historical delinquency information for another asset group (such as the managed or serviced portfolio, or all prior securitized pools) is necessary to make the information not misleading, then that information should also be included. General principles of materiality and not Item 1100(b) govern the disclosure of such additional information. See Rule 12b-20 and the interpretation above regarding Item 1100(b). [12/30/05]

Credit enhancements, to the extent material, must be described pursuant to Item 1114 of Regulation AB. The underlying obligor’s arrangements in connection with the original extension of loan level mortgage insurance, hazard insurance, or homeowner’s insurance would not be considered credit enhancement. [12/30/05]

In preparing their reports required under Items 1122(a) and 1122(b), servicers must assess compliance with the servicing criteria exactly as set forth in Item 1122(d). If a servicer’s process differs from one or more criteria in Item 1122(d), the servicer must disclose that it is not in compliance with those particular criteria. The servicer may disclose why the servicer’s process is different from the servicing criteria in the report. [12/09/14]

Withdrawn and codified as Item 1122(d)(1)(v) of Regulation AB.

The servicing criterion in Item 1122(d)(4)(i) requires an assessment of whether the mortgage and related documents, rather than the physical properties underlying the mortgages, are maintained as required by the transaction agreements or related pool asset documents. Moreover, an auditor attesting to an assertion regarding the Item 1122(d)(4)(i) criterion is only required to verify that the mechanics of performing the loan perfection or loan defeasance prescribed in the transaction agreements or related pool asset documents have been performed. The auditor is not required for this or any other criterion to make a legal determination, such as whether the loan perfection and loan defeasance were successfully performed. [08/08/06]

A trustee calculating the distribution amounts paid to investors is a party participating in the servicing function for purposes of Rules 13d-18 and 15d-18 and Item 1122 of Regulation AB. However, the Instruction to Item 1123 of Regulation AB clarifies that if multiple servicers are involved, a servicer compliance statement is required only of each servicer that meets the criteria in Item 1108(a)(2)(i) through (iii) of Regulation AB. A trustee that only calculates the distribution amounts paid to investors and performs no other servicing function falls within Item 1108(a)(iv) and therefore is not required to provide an Item 1123 servicer compliance statement. [12/30/05]

Reports on assessment of compliance with servicing criteria under Item 1122 of Regulation AB do not have to include instances of noncompliance with the servicing criteria if the instances of noncompliance are not material to the servicing platform. However, a servicer may need to disclose in the Item 1123 servicer compliance statement an instance of noncompliance with servicing criteria that is material to the servicing of the specific asset pool covered by the report on Form 10-K, even if the instance of noncompliance is not disclosed in the Item 1122 report. Further, if known to the filing party, the instance of noncompliance may need to be disclosed in the issuer’s Exchange Act reports. [08/08/06]