Additional Disclosure Items AFfecting Servicers for the Form 10-K
Disclosure of Material Instances of Non-Compliance
If instances of non-compliance are identified in the Form 10-K Report(s) on Assessments of Compliance with Servicing Criteria and the Accountant's Attestation, then these material or significant instances of non-compliance must be disclosed in the report(s) on Form 10-K.
The Securities and Exchange Commission (SEC) "...continues to believe it is important for material instances of noncompliance that are reported in each of the reports prepared by parties participating in the servicing function to be identified by the person preparing the Form 10-K in the report on Form 10-K." (1)
Originally, the SEC sought to adopt a clause that would require the responsible party's issuing these reports to disclose what the impact would be of non-compliance and how it could affect the pool asset performance, servicing of the pool assets or payments or expected payments on the asset-backed securities. However, even in the absence of this requirement, "whether any such disclosure is required will depend on the particular facts and circumstances." (2)
Disclosure of Reports not Included in Form 10-K as an exhibit
If any party's Report(s) on Assessments of Compliance with Servicing Criteria and the Accountant's Attestation are not included as an exhibit to the Form 10-K report, disclosure that the report(s) are not included and an associated explanation must be provided in the report on Form 10-K.
(1) Securities and Exchange Commission 17 CFR Parts 210, 228, et al. Asset Backed Securities: Final Rule
(2) Securities and Exchange Commission 17 CFR Parts 210, 228, et al. Asset Backed Securities: Final Rule
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