Regulation AB and Related Rules

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] (Reg AB Telephone Interpretation 16.01)

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] (Reg AB Telephone Interpretation 17.01)

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] (Reg AB Telephone Interpretation 17.02)

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] (Reg AB Telephone Interpretations 17.03 and 17.04)

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] (Reg AB Telephone Interpretation 17.06)

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] (Reg AB Telephone Interpretation 18.01)

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] (Reg AB Telephone Interpretation 19.01)

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] (Reg AB Telephone Interpretation 1.01)

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] (Reg AB Telephone Interpretation 3.01)

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] (Reg AB Telephone Interpretation 6.01)

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] (Reg AB Telephone Interpretation 6.02)

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] (Reg AB Telephone Interpretation 7.01)

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] (Reg AB Telephone Interpretation 7.02)

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] (Reg AB Telephone Interpretation 8.01)

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] (Reg AB Telephone Interpretation 9.01)

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] (Reg AB Telephone Interpretation 10.01)

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] (Reg AB Telephone Interpretation 11.01)

The servicing criterion in Item 1122(d)(3)(i) requires an assessment of whether “[r]eports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements.” Application of this criterion, as with any Item 1122(d) criterion, depends on the role of the particular servicer. This criterion relates to the servicing activity of compiling and aggregating the information and timely filing or providing reports, which may or may not include preparing the underlying calculations depending on the role of the servicer. For example, if Servicer A calculates the waterfall and Servicer B compiles and files the Forms 10-D with the Commission but does not calculate the waterfall, Item 1122(d)(3)(i) requires only an assessment by Servicer B with respect to the waterfall of whether the information about the amount of distributions provided to Servicer B from Servicer A was appropriately included and timely filed on Form 10-D. It does not require that Servicer B assess whether Servicer A correctly calculated the information it gave to Servicer B. Other criteria within Item 1122(d) will govern the assessment from the appropriate servicer of the information contained in the reports. For example, Servicer A will assess the calculation of the waterfall under the next subsection of Item 1122(d)(3), Item 1122(d)(3)(ii), in its own report on assessment of compliance with servicing criteria. If, however, one servicer prepares all of the disclosure contained in the Form 10-D rather than compiling it from other sources, Item 1122(d)(3)(i) would require that servicer to assess whether the disclosure was calculated in accordance with the terms of the transaction agreements and prepared and filed in accordance with the time frames specified in the transaction agreements and Commission rules. [08/08/06] (Reg AB Telephone Interpretation 11.02)

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] (Reg AB Telephone Interpretation 11.04)

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] (Reg AB Telephone Interpretation 12.01)

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] (Reg AB Telephone Interpretation 17.05)