Securities Lawyer's Deskbook                          published by The University of Cincinnati College of Law

Rule 3a-7 -- Issuers of Asset-Backed Securities

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1. Notwithstanding section 3(a) of the Act, any issuer who is engaged in the business of purchasing, or otherwise acquiring, and holding eligible assets (and in activities related or incidental thereto), and who does not issue redeemable securities will not be deemed to be an investment company; Provided That:
   
   
   1. The issuer issues fixed-income securities or other securities which entitle their holders to receive payments that depend primarily on the cash flow from eligible assets;
      
      
   2. Securities sold by the issuer or any underwriter thereof are fixed-income securities rated, at the time of initial sale, in one of the four highest categories assigned long-term debt or in an equivalent short-term category (within either of which there may be sub-categories or gradations indicating relative standing) by at least one nationally recognized statistical rating organization that is not an affiliated person of the issuer or of any person involved in the organization or operation of the issuer, except that:
      
      
      1. Any fixed-income securities may be sold to accredited investors as defined in paragraphs (1), (2), (3), and (7) of rule 501(a) under the Securities Act of 1933 and any entity in which all of the equity owners come within such paragraphs; and
         
         
      2. Any securities may be sold to qualified institutional buyers as defined in rule 144A under the Securities Act and to persons (other than any rating organization rating the issuer's securities) involved in the organization or operation of the issuer or an affiliate, as defined in rule 405 under the Securities Act, of such a person;
         
         Provided, That the issuer or any underwriter thereof effecting such sale exercises reasonable care to ensure that such securities are sold and will be resold to persons specified in paragraphs (a)(2) (i) and (ii) of this section;
         
         
   3. The issuer acquires additional eligible assets, or disposes of eligible assets, only if:
      
      
      1. The assets are acquired or disposed of in accordance with the terms and conditions set forth in the agreements, indentures, or other instruments pursuant to which the issuer's securities are issued;
         
         
      2. The acquisition or disposition of the assets does not result in a downgrading in the rating of the issuer's outstanding fixed-income securities; and
         
         
      3. The assets are not acquired or disposed of for the primary purpose of recognizing gains or decreasing losses resulting from market value changes; and
         
         
   4. If the issuer issues any securities other than securities exempted from the Securities Act by section 3(a)(3) thereof, the issuer:
      
      
      1. Appoints a trustee that meets the requirements of section 26(a)(1) of the Act and that is not affiliated, as that term is defined in rule 405 under the Securities Act, with the issuer or with any person involved in the organization or operation of the issuer, which does not offer or provide credit or credit enhancement to the issuer, and that executes an agreement or instrument concerning the issuer's securities containing provisions to the effect set forth in section 26(a)(3) of the Act;
         
         
      2. Takes reasonable steps to cause the trustee to have a perfected security interest or ownership interest valid against third parties in those eligible assets that principally generate the cash flow needed to pay the fixed-income security holders, provided that such assets otherwise required to be held by the trustee may be released to the extent needed at the time for the operation of the issuer; and
         
         
      3. Takes actions necessary for the cash flows derived from eligible assets for the benefit of the holders of fixed-income securities to be deposited periodically in a segregated account that is maintained or controlled by the trustee consistent with the rating of the outstanding fixed-income securities.
         
         
2. For purposes of this section:
   
   
   1. Eligible assets means financial assets, either fixed or revolving, that by their terms convert into cash within a finite time period plus any rights or other assets designed to assure the servicing or timely distribution of proceeds to security holders.
      
      
   2. Fixed-income securities means any securities that entitle the holder to receive:
      
      
      1. A stated principal amount; or
         
         
      2. Interest on a principal amount (which may be a notional principal amount) calculated by reference to a fixed rate or to a standard or formula which does not reference any change in the market value or fair value of eligible assets; or
         
         
      3. Interest on a principal amount (which may be a notional principal amount) calculated by reference to auctions among holders and prospective holders, or through remarketing of the security; or
         
         
      4. An amount equal to specified fixed or variable portions of the interest received on the assets held by the issuer; or
         
         
      5. Any combination of amounts described in paragraphs (b)(2) (i), (ii), (iii), and (iv) of this section;
         
         Provided, That substantially all of the payments to which the holders of such securities are entitled consist of the foregoing amounts.

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