Recently, the Staff of the Securities and Exchange Commission’s Division of Corporation Finance provided additional guidance in the form of a new Compliance and Disclosure Interpretation (C&DI) as part of the Regulation AB and Related Rules C&DIs, which we have reprinted below in its entirety, and which relates to the timely filing requirement for Form SF-3 eligibility.
111.01 Form SF-3 Eligibility Requirements, Timely Transaction Documents
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]