EBSA
Notices
Prohibited Transaction Exemptions and Grant of Individual Exemptions Involving: PTE 2009-29, Iron Workers Local 17 Pension Fun (the Plan), D-11432, et al.
[ 11/16/2009]
[ PDF]
FR Doc E9-27405
[Federal Register: November 16, 2009 (Volume 74, Number 219)]
[Notices]
[Page 59001-59012]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16no09-81]
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DEPARTMENT OF LABOR
Employee Benefits Security Administration
Prohibited Transaction Exemptions and Grant of Individual
Exemptions Involving: PTE 2009-29, Iron Workers Local 17 Pension Fun
(the Plan), D-11432, et al.
PTE 2009-29, Iron Workers Local 17 Pension Fun (the Plan), D-11432;
PTE 2009-30, Urology Clinics of North Texas, P,A. 401(k) Profit
Sharing Plan and Trust (The Plan), D-11483;
PTE 2009-31, Amendment to Prohibited Transaction Exemption (PTE) 96-
22, 61 FR 14828 (April 3, 1996), as amended by PTE 97-34, 62 FR
39021 (July 21, 1997), PTE 2000-58, 65 FR 67765 (November 13, 2000),
PTE 2002-41, 67 FR 54487 (August 22, 2002) and PTE 2007-05, 72 FR
13130 (March 20, 2007) as corrected at 72 FR 16385 (April 4, 2007)
(PTE 2007-05), (PTE 96-22), Involving the Wachovia Corporation and
its affiliates (Wachovia), the Successor of First Union Corporation
and to PTE 2002-19, 67 FR 14979 (March 28, 2002), as amended by PTE
2007-05 and PTE 2009-16, 74 FR 30623 (June 26, 2009) (PTE 2002-19),
Involving J.P. Morgan Chase & Company and Its Affiliates, D-11530;
PTE 2009-32, The Alaska Laborers-Construction Industry
Apprenticeship Training Trust (the Plan), L-11482.
AGENCY: Employee Benefits Security Administration, Labor.
ACTION: Grant of individual exemptions.
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SUMMARY: This document contains exemptions issued by the Department of
Labor (the Department) from certain of the prohibited transaction
restrictions of the Employee Retirement Income Security Act of 1974
(ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code).
A notice was published in the Federal Register of the pendency
before the Department of a proposal to grant such exemption. The notice
set forth a summary of facts and representations contained in the
application for exemption and referred interested persons to the
application for a complete statement of the facts and representations.
The application has been available for public inspection at the
Department in Washington, DC. The notice also invited interested
persons to submit comments on the requested exemption to the
Department. In addition the notice stated that any interested person
might submit a written request that a public hearing be held (where
appropriate). The applicant has represented that it has complied with
the requirements of the notification to interested persons. No requests
for a hearing were received by the Department. Public comments were
received by the Department as described in the granted exemption.
The notice of proposed exemption was issued and the exemption is
being granted solely by the Department because, effective December 31,
1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1
(1996), transferred the authority of the Secretary of the Treasury to
issue exemptions of the type proposed to the Secretary of Labor.
Statutory Findings
In accordance with section 408(a) of the Act and/or section
4975(c)(2) of the Code and the procedures set forth in 29 CFR Part
2570, Subpart B (55 FR 32836, 32847, August 10, 1990) and based upon
the entire record, the Department makes the following findings:
(a) The exemption is administratively feasible;
(b) The exemption is in the interests of the plan and its
participants and beneficiaries; and
(c) The exemption is protective of the rights of the participants
and beneficiaries of the plan.
Iron Workers Local 17 Pension Fund (the Plan) Located in Cleveland,
Ohio
[Prohibited Transaction Exemption 2009-29; Exemption Application No.
D-11432]
Exemption
The restrictions in sections 406(a)(1)(A), 406(a)(1)(D), and 406
(b)(1) and (b)(2) of the Act and the sanctions resulting from the
application of section 4975 of the Code, by reason of section
4975(c)(1)(A) and 4975(c)(1)(D) through (E) of the Code, shall not
apply to the sale of a leasehold interest, which includes an office
building (the Building) and certain rights pursuant to a ground lease,
held by the Plan, to the Bridge, Structural and Ornamental Iron Workers
Local Union No. 17 (the Union), a party in interest with respect to the
Plan, provided that the following conditions are satisfied:
(a) The terms and conditions of the sale are at least as favorable
to the Plan as those that the Plan could obtain in an arm's length
transaction with an unrelated party;
(b) The Plan receives the greater of $285,000 or the fair market
value of the
[[Page 59002]]
Building and lot on which the Building is located (the Lot), as of the
date of the sale, as determined by a qualified, independent appraiser;
(c) The sale is a one-time transaction for cash;
(d) The Plan pays no commissions, costs, or other expenses in
connection with the sale (other than fees associated with the retention
of a qualified, independent appraiser and the retention of a qualified,
independent fiduciary);
(e) The Board of Trustees retains a qualified, independent
fiduciary, who will review and approve the methodology used by the
qualified, independent appraiser, will ensure that such methodology is
properly applied in determining the fair market value of the Building
and Lot as of the date of the sale, and will determine whether it is
prudent to go forward with the proposed transaction; and
(f) Prior to the publication of this final exemption in the Federal
Register regarding the subject transaction, the Union: (i) Filed Form
5330 (Return of Excise Taxes Related to Employee Benefit Plans) with
the Internal Revenue Service (IRS) and paid all applicable excise taxes
due by reason of its prohibited past leasing to the Plan of the Lot on
which the subject Building was constructed by the Plan; and (ii)
provided the Department with copies of Form 5330 and of the checks
submitted to the IRS indicating that the taxes were correctly computed
and paid.
For a more complete statement of the facts and representations
supporting the Department's decision to grant this exemption, refer to
the notice of proposed exemption published on June 26, 2009 at 74 FR
30631.
FOR FURTHER INFORMATION CONTACT: Ms. Karin Weng of the Department,
telephone (202) 693-8557. (This is not a toll-free number.)
Urology Clinics of North Texas, P.A. 401(k) Profit Sharing Plan and
Trust (The Plan) Located in Dallas, TX
Prohibited Transaction Exemption 2009-30; [Application No. D-11483]
Exemption
The restrictions of sections 406(a), 406(b)(1) and (b)(2) of the
Act and the sanctions resulting from the application of section 4975 of
the Code, by reason of section 4975(c)(1)(A) through (E) of the Code,
will not apply to the proposed sale (the Sale) of a 2.52 percent
ownership interest comprising 5.55 Class I Units issued by the Center
for Pediatric Surgery (CPS) and a 2.52 percent ownership interest
comprising 5.55 Class I Units of the Center of Pediatric Surgery, LLC
(CPS LLC) (collectively the ``Units''), unrelated parties with respect
to the Plan, by the individually directed account in the Plan (the
Account) of David Ewalt, M.D. (Dr. Ewalt), to Dr. Ewalt, a party in
interest with respect to the Plan.
This exemption is subject to the following conditions:
(a) The Sale is a one-time transaction for cash;
(b) the closing date of the Sale (the Closing Date) occurs within
60 days of the Department's publication of the grant of the final
exemption in the Federal Register;
(c) the Units are sold to Dr. Ewalt at the greater of the fair
market value of the Units as of the Closing Date, as determined by a
qualified, independent appraiser or for $441,000 for the 2.52 percent
ownership interest in CPS and the 2.52 percent ownership interest in
CPS LLC;
(d) in addition to the sale price described above, the Account will
have received $408,954.00 in consideration for the reduction of the
Account's interest in CPS and CPS LLC as a result of an investment by
Cook Children's Health Care System (Cook) in CPS and CPS LLC;
(e) the proceeds from the Sale are credited to the Account
simultaneously with the transfer of the Units' title to Dr. Ewalt;
(f) neither the Plan nor the Account pay any fees, commissions, or
other costs or expenses associated with the Sale; and
(g) the terms and conditions of the Sale remain at least as
favorable to the Account as the terms and conditions obtainable under
similar circumstances negotiated at arm's length with an unrelated
party.
Effective Date: This exemption is effective as of the date of
publication of this exemption in the Federal Register.
Written Comments
In the Notice of Proposed Exemption (the Notice), the Department
invited all interested persons to submit written comments and requests
for a hearing. During the comment period, the Department received no
requests for a hearing. The Department received comments from the
Applicant dated July 24, 2009, August 21, 2009 and September 2, 2009.
The Applicant cited the following issues with regard to the Notice.
In its July 24, 2009 and August 21, 2009 comments, the Applicant
supplemented its original application with additional facts. First, the
Applicant explained that in addition to its 2.52 percent ownership
interest in CPS, the Account also held an identical 2.52 percent
ownership interest in the Center for Pediatric Surgery, LLC, (CPS LLC)
a Texas limited liability company which is the general partner of CPS.
The Board of Managers of CPS LLC, in accordance with the governing
documents of CPS, acts as the governing body for CPS and CPS LLC. In
addition, the operative language of the final exemption now reflects
the additional information submitted in the comments.
The Applicant submitted a supplemental appraisal from Vincent
Kickirillo (the Appraiser) of VMG Health, LLC dated August 21, 2009.
The Appraiser reviewed both the 2.52 percent interest in CPS and the
2.52 interest in CPS LLC and based his valuation on the division of
income between CPS and CPS LLC. The income and profits generated by
CPS' and CPS LLC's pediatric services remain unchanged from earlier
valuations. CPS LLC, as a distinct legal entity, does not generate any
income or losses. For tax purposes, CPS receives 99.55% and CPS LLC
receives .45% of the total profits from their pediatric business. The
Appraiser valued the 2.52 percent interest (or 5.55 Units in CPS) at
$439,005.00 and the 2.52 percent interest (or 5.55 Units in CPS LLC) at
$1,995.00. Therefore, the Appraiser represented that the Account's 2.52
interest in CPS and 2.52 percent interest in CPS LLC resulted in a
value of $441,000.00.
Finally, on September 2, 2009, the Applicant clarified its
application to note that in August 2008, the ownership of the CPS and
CPS LLC was reorganized. The Account now owns a 2.52 percent ownership
interest consisting of 5.55 Class I Units of CPS and a 2.52 percent
ownership interest consisting of 5.55 Class I Units of CPS LLC instead
of a 2.52 percent ownership interest consisting of 5 Class I Units of
CPS and a 2.52 percent ownership interest consisting of 5 Class I Units
of CPS LLC.
The operative language of the final exemption now reflects the
additional information submitted by the Applicant. Also, the Department
has revised paragraphs 7 and 8 as well as footnote 6 in the Notice.
Paragraph 7 of the Summary of Facts and Representations has been
revised to read as follows:
On August 1, 2008, Cook completed a capital investment in CPS
and CPS LLC that resulted in Cook's ownership of 51 percent of the
aggregate ownership interest CPS and CPS LLC. Cook is not a party in
interest to the Plan.
The Cook investment did not represent an actual purchase from
the Account of any of the Units. Instead, the Cook investment
represented an injection of capital into CPS
[[Page 59003]]
which resulted in the issuance of additional ownership units to Cook
and dilution of the then existing investors of CPS and CPS LLC.
Paragraph 8 of the Summary of Facts and Representations has been
revised to read as follows:
Prior to the investment by Cook, individual investors, including
the Account, together held an 81 percent aggregate interest in CPS
and CPS LLC, while the remaining 19 percent interest was held by
Nuettera Holdings, LLC, (Nuettera) the entity providing business
management services to CPS. Following the investment by Cook, the
individual investors' aggregate interest in CPS and CPS LLC has been
reduced to 44 percent respectively and the interest held by Nuettera
Holdings, LLC has been reduced to five percent respectively.\6\ Due
to the Cook investment and the resulting dilution and reduction of
the ownership of the individual investors, the Account's aggregate
interest in CPS and CPS LLC decreased from 4.63 percent to 2.52
percent respectively. As consideration for this dilution of their
ownership interest, the previous investors received a special cash
distribution from CPS. The Account's share of this cash
consideration was $408,954.00. This amount was deposited in the
Account and invested in accordance with Dr. Ewalt's directions.
Individual number of units in CPS and CPS LLC held by the Account
increased from five to 5.55 units respectively as part of this
transaction. The Applicant submitted a supplemental appraisal from
the Appraiser dated August 21, 2009. The Appraiser used the division
of income between CPS and CPS LLC as basis for his valuation. CPS
receives 99.55% and CPS LLC receives .45% of the total profits from
their pediatric business. Accordingly, the Appraiser valued the 2.52
percent interest or 5.55 Units in CPS at $439,005.00. The Appraiser
valued the 2.52 percent interest or 5.55 Units in CPS LLC at
$1,995.00. Finally, the Appraiser represented that the Account's
2.52 interest in CPS and 2.52 percent interest CPS LLC combined
equaled $441,000.00.
Footnote 6 in the Summary of Facts and Representations has been
revised to read as follows:
Nuetttera was engaged to provide management services for the
surgery center. Nuettera held an ownership interest in CPS, but that
interest was represented by units of a different class (Class II
units) than those held by the physician practitioners who owned the
remaining interests in CPS and CPS LLC (Class I units).
When Cook acquired its interest in CPS and CPS LLC in 2008, it
acquired both Class I and Class II units. The dilution of Nuettera's
interest in CPS and CPS LLC was proportionately greater than the
dilution of the physicians' interests because Cook acquired seventy-
five percent (75%) of the Class II units for CPS and CPS LLC. In
contrast, the aggregate ownership of the physicians in CPS and CPS
LLC was diluted by roughly fifty-four percent (54%) following the
Cook investment. The reason the relative dilution of the two groups
was different was a result of the fact that the two groups owned
different classes of ownership units.
For a more complete statement of the facts and representations
supporting the Department's decision to grant this exemption, refer to
the Notice of Proposed Exemption published in the Federal Register on
June 26, 2009 at 74 FR 30634. Based on the entire record, the
Department has determined to grant this exemption as revised herein.
For Further Information Contact: Anh-Viet Ly of the Department,
telephone (202) 693-8648 (this is not a toll-free number).
Amendment to Prohibited Transaction Exemption (PTE) 96-22, 61 FR
14828 (April 3, 1996), as amended by PTE 97-34, 62 FR 39021 (July
21, 1997), PTE 2000-58, 65 FR 67765 (November 13, 2000), PTE 2002-
41, 67 FR 54487 (August 22, 2002) and PTE 2007-05, 72 FR 13130
(March 20, 2007) as corrected at 72 FR 16385 (April 4, 2007) (PTE
2007-05), (PTE 96-22), Involving the Wachovia Corporation and its
affiliates (Wachovia), the Successor of First Union Corporation and
to PTE 2002-19, 67 FR 14979 (March 28, 2002), as amended by PTE
2007-05 and PTE 2009-16, 74 FR 30623 (June 26, 2009) (PTE 2002-19),
Involving J.P. Morgan Chase & Company and Its Affiliates.
[Prohibited Transaction Exemption 2009-31; Exemption Application
Number D-11530]
Exemption
In accordance with section 408(a) of the Act and section 4975(c)(2)
of the Code and the procedures set forth in 29 CFR Part 2570, Subpart B
(55 FR 32836, August 10, 1990), the Department amends Prohibited
Transaction Exemption (PTE) 96-22, 61 FR 14828 (April 3, 1996), as
amended by PTE 97-34, 62 FR 39021 (July 21, 1997), PTE 2000-58, 65 FR
67765 (November 13, 2000), PTE 2002-41, 67 FR 54487 (August 22, 2002)
and PTE 2007-05, 72 FR 13130 (March 20, 2007) as corrected at 72 FR
16385 (April 4, 2007) (PTE 2007-05), (PTE 96-22) and PTE 2002-19, 67 FR
14979 (March 28, 2002) as amended by PTE 2007-05 and PTE 2009-16, 74 FR
30623 (June 26, 2009) (PTE 2002-19).
I. Transactions
A. Effective December 31, 2008, the restrictions of sections 406(a)
and 407(a) of the Act, and the taxes imposed by sections 4975(a) and
(b) of the Code, by reason of section 4975(c)(1)(A) through (D) of the
Code shall not apply to the following transactions involving Issuers
and Securities evidencing interests therein:
(1) The direct or indirect sale, exchange or transfer of Securities
in the initial issuance of Securities between the Sponsor or
Underwriter and an employee benefit plan when the Sponsor, Servicer,
Trustee or Insurer of an Issuer, the Underwriter of the Securities
representing an interest in the Issuer, or an Obligor is a party in
interest with respect to such plan;
(2) The direct or indirect acquisition or disposition of Securities
by a plan in the secondary market for such Securities; and
(3) The continued holding of Securities acquired by a plan pursuant
to subsection I.A.(1) or (2).
Notwithstanding the foregoing, section I.A. does not provide an
exemption from the restrictions of sections 406(a)(1)(E), 406(a)(2) and
407 of the Act for the acquisition or holding of a Security on behalf
of an Excluded Plan by any person who has discretionary authority or
renders investment advice with respect to the assets of that Excluded
Plan.\1\
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\1\ Section I.A. provides no relief from sections 406(a)(1)(E),
406(a)(2) and 407 of the Act for any person rendering investment
advice to an Excluded Plan within the meaning of section
3(21)(A)(ii) of the Act, and regulation 29 CFR 2510.3-21(c).
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B. Effective December 31, 2008, the restrictions of sections
406(b)(1) and 406(b)(2) of the Act and the taxes imposed by sections
4975(a) and (b) of the Code, by reason of section 4975(c)(1)(E) of the
Code, shall not apply to:
(1) The direct or indirect sale, exchange or transfer of Securities
in the initial issuance of Securities between the Sponsor or
Underwriter and a plan when the person who has discretionary authority
or renders investment advice with respect to the investment of plan
assets in the Securities is (a) an Obligor with respect to 5 percent or
less of the fair market value of obligations or receivables contained
in the Issuer, or (b) an Affiliate of a person described in (a); if:
(i) The plan is not an Excluded Plan;
(ii) Solely in the case of an acquisition of Securities in
connection with the initial issuance of the Securities, at least 50
percent of each class of Securities in which plans have invested is
acquired by persons independent of the members of the Restricted Group
and at least 50 percent of the aggregate interest in the Issuer is
acquired by persons independent of the Restricted Group;
(iii) A plan's investment in each class of Securities does not
exceed 25 percent of all of the Securities of that class outstanding at
the time of the acquisition; and
(iv) Immediately after the acquisition of the Securities, no more
than 25 percent of the assets of a plan with respect to which the
person has discretionary authority or renders investment advice are
invested in Securities representing an interest in an Issuer containing
assets sold or serviced
[[Page 59004]]
by the same entity.\2\ For purposes of this paragraph (iv) only, an
entity will not be considered to service assets contained in an Issuer
if it is merely a Subservicer of that Issuer;
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\2\ For purposes of this Underwriter Exemption, each plan
participating in a commingled fund (such as a bank collective trust
fund or insurance company pooled separate account) shall be
considered to own the same proportionate undivided interest in each
asset of the commingled fund as its proportionate interest in the
total assets of the commingled fund as calculated on the most recent
preceding valuation date of the fund.
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(2) The direct or indirect acquisition or disposition of Securities
by a plan in the secondary market for such Securities, provided that
the conditions set forth in paragraphs (i), (iii) and (iv) of
subsection I.B.(1) are met; and
(3) The continued holding of Securities acquired by a plan pursuant
to subsection I.B.(1) or (2).
C. Effective December 31, 2008, the restrictions of sections
406(a), 406(b) and 407(a) of the Act, and the taxes imposed by section
4975(a) and (b) of the Code by reason of section 4975(c) of the Code,
shall not apply to transactions in connection with the servicing,
management and operation of an Issuer, including the use of any
Eligible Swap transaction; or the defeasance of a mortgage obligation
held as an asset of the Issuer through the substitution of a new
mortgage obligation in a commercial mortgage-backed Designated
Transaction, provided:
(1) Such transactions are carried out in accordance with the terms
of a binding Pooling and Servicing Agreement;
(2) The Pooling and Servicing Agreement is provided to, or
described in all material respects in the prospectus or private
placement memorandum provided to, investing plans before they purchase
Securities issued by the Issuer; \3\ and
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\3\ In the case of a private placement memorandum, such
memorandum must contain substantially the same information that
would be disclosed in a prospectus if the offering of the securities
were made in a registered public offering under the Securities Act
of 1933. In the Department's view, the private placement memorandum
must contain sufficient information to permit plan fiduciaries to
make informed investment decisions. For purposes of this exemption,
references to ``prospectus'' include any related prospectus
supplement thereto, pursuant to which Securities are offered to
investors.
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(3) The defeasance of a mortgage obligation and the substitution of
a new mortgage obligation in a commercial mortgage-backed Designated
Transaction meet the terms and conditions for such defeasance and
substitution as are described in the prospectus or private placement
memorandum for such Securities, which terms and conditions have been
approved by a Rating Agency and does not result in the Securities
receiving a lower credit rating from the Rating Agency than the current
rating of the Securities.
Notwithstanding the foregoing, section I.C. does not provide an
exemption from the restrictions of section 406(b) of the Act or from
the taxes imposed by reason of section 4975(c) of the Code for the
receipt of a fee by a Servicer of the Issuer from a person other than
the Trustee or Sponsor, unless such fee constitutes a Qualified
Administrative Fee.
D. Effective December 31, 2008, the restrictions of sections 406(a)
and 407(a) of the Act, and the taxes imposed by section 4975(a) and (b)
of the Code by reason of section 4975(c)(1)(A) through (D) of the Code,
shall not apply to any transactions to which those restrictions or
taxes would otherwise apply merely because a person is deemed to be a
party in interest or disqualified person (including a fiduciary) with
respect to a plan by virtue of providing services to the plan (or by
virtue of having a relationship to such service provider described in
section 3(14)(F), (G), (H) or (I) of the Act or section 4975(e)(2)(F),
(G), (H) or (I) of the Code), solely because of the plan's ownership of
Securities.
II. General Conditions
A. The relief provided under section I. is available only if the
following conditions are met:
(1) The acquisition of Securities by a plan is on terms (including
the Security price) that are at least as favorable to the plan as they
would be in an arm's-length transaction with an unrelated party;
(2) The rights and interests evidenced by the Securities are not
subordinated to the rights and interests evidenced by other Securities
of the same Issuer, unless the Securities are issued in a Designated
Transaction;
(3) The Securities acquired by the plan have received a rating from
a Rating Agency at the time of such acquisition that is in one of the
three (or in the case of Designated Transactions, four) highest generic
rating categories;
(4) The Trustee is not an Affiliate of any member of the Restricted
Group, other than an Underwriter. For purposes of this requirement:
(a) The Trustee shall not be considered to be an Affiliate of a
Servicer solely because the Trustee has succeeded to the rights and
responsibilities of the Servicer pursuant to the terms of a Pooling and
Servicing Agreement providing for such succession upon the occurrence
of one or more events of default by the Servicer; and
(b) Subsection II.A.(4) will be deemed satisfied notwithstanding a
Servicer becoming an Affiliate of the Trustee as the result of a merger
or acquisition involving the Trustee, such Servicer and/or their
Affiliates which occurs after the initial issuance of the Securities,
provided that:
(i) Such Servicer ceases to be an Affiliate of the Trustee no later
than six months after the date such Servicer became an Affiliate of the
Trustee; and
(ii) Such Servicer did not breach any of its obligations under the
Pooling and Servicing Agreement, unless such breach was immaterial and
timely cured in accordance with the terms of such agreement, during the
period from the closing date of such merger or acquisition transaction
through the date the Servicer ceased to be an Affiliate of the Trustee;
(c) [(d) of PTE 2002-19] Effective December 31, 2008 through June
30, 2009, Wells Fargo, N.A., the Trustee, shall not be considered to be
an Affiliate of any member of the Restricted Group solely as the result
of the acquisition of Wachovia Corporation and its affiliates
(Wachovia) by Wells Fargo & Company and its subsidiaries (WFC), the
parent holding company of Wells Fargo, N.A. (the Acquisition), which
occurred after the initial issuance of the Securities, provided that:
(i) The Trustee, Wells Fargo, N.A., ceases to be an Affiliate of
any member of the Restricted Group no later than June 30, 2009;
(ii) Any member of the Restricted Group that is an Affiliate of the
Trustee, Wells Fargo, N.A., did not breach any of its obligations under
the Pooling and Servicing Agreement, unless such breach was immaterial
and timely cured in accordance with the terms of such agreement, during
the period from December 31, 2008 through the date the member of the
Restricted Group ceased to be an Affiliate of the Trustee, Wells Fargo,
N.A.; and
(iii) In accordance with each Pooling and Servicing Agreement, the
Trustee, Wells Fargo, N.A., appoints a co-trustee, which is not an
Affiliate of Wachovia or any other member of the Restricted Group, no
later than the earlier of (A) March 31, 2009 or (B) five business days
after Wells Fargo, N.A. becomes aware of a conflict between the Trustee
and any member of the Restricted Group that is an Affiliate of the
Trustee. The co-trustee will be responsible for resolving any conflict
between the Trustee and any member of the Restricted Group that has
become an Affiliate of the Trustee as a result of the Acquisition;
provided,
[[Page 59005]]
that if the Trustee has resigned on or prior to March 31, 2009 and no
event described in clause (B) has occurred, no co-trustee shall be
required.\4\
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\4\ On May 7, 2009, Wells Fargo Bank, N.A. informed the
Department that for all 39 of the transactions on the Securitization
List at section III.KK [section III.LL of PTE 2002-19], the
replacement trustees were in place as of March 31, 2009.
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(iv) For purposes of this subsection II.A.(4)(c) [subsection
II.A.(4)(d) of PTE 2002-19], a conflict arises whenever (A) Wachovia,
as a member of the Restricted Group, fails to perform in accordance
with the timeframes contained in the relevant Pooling and Servicing
Agreement following a request for performance from Wells Fargo, N.A.,
as Trustee, or (B) Wells Fargo, N.A., as Trustee, fails to perform in
accordance with the timeframes contained in the relevant Pooling and
Servicing Agreement following a request for performance from Wachovia,
a member of the Restricted Group.
The time as of which a conflict occurs is the earlier of: The day
immediately following the last day on which compliance is required
under the relevant Pooling and Servicing Agreement; or the day on which
a party affirmatively responds that it will not comply with a request
for performance.
For purposes of this subsection II.A.(4)(c) [subsection II.A.(4)(d)
of PTE 2002-19], the term ``conflict'' includes but is not limited to,
the following: (1) Wachovia's failure, as Sponsor, to repurchase a loan
for breach of representation within the time period prescribed in the
relevant Pooling and Servicing Agreement, following Wells Fargo, N.A.'s
request, as Trustee, for performance; (2) Wachovia, as Sponsor,
notifies Wells Fargo, N.A., as Trustee, that it will not repurchase a
loan for breach of representation, following Wells Fargo, N.A.'s
request that Wachovia repurchase such loan within the time period
prescribed in the relevant Pooling and Servicing Agreement (the
notification occurs prior to the expiration of the prescribed time
period for the repurchase); and (3) Wachovia, as Swap Counterparty,
makes or requests a payment based on a value of the London Interbank
Offered Rate (LIBOR) that Wells Fargo, N.A., as Trustee, considers
erroneous.
(5) The sum of all payments made to and retained by the
Underwriters in connection with the distribution or placement of
Securities represents not more than Reasonable Compensation for
underwriting or placing the Securities; the sum of all payments made to
and retained by the Sponsor pursuant to the assignment of obligations
(or interests therein) to the Issuer represents not more than the fair
market value of such obligations (or interests); and the sum of all
payments made to and retained by the Servicer represents not more than
Reasonable Compensation for the Servicer's services under the Pooling
and Servicing Agreement and reimbursement of the Servicer's reasonable
expenses in connection therewith;
(6) The plan investing in such Securities is an ``accredited
investor'' as defined in Rule 501(a)(1) of Regulation D of the
Securities and Exchange Commission under the Securities Act of 1933;
and
(7) In the event that the obligations used to fund an Issuer have
not all been transferred to the Issuer on the Closing Date, additional
obligations of the types specified in subsection III.B.(1) may be
transferred to the Issuer during the Pre-Funding Period in exchange for
amounts credited to the Pre-Funding Account, provided that:
(a) The Pre-Funding Limit is not exceeded;
(b) All such additional obligations meet the same terms and
conditions for determining the eligibility of the original obligations
used to create the Issuer (as described in the prospectus or private
placement memorandum and/or Pooling and Servicing Agreement for such
Securities), which terms and conditions have been approved by a Rating
Agency.
Notwithstanding the foregoing, the terms and conditions for
determining the eligibility of an obligation may be changed if such
changes receive prior approval either by a majority vote of the
outstanding securityholders or by a Rating Agency;
(c) The transfer of such additional obligations to the Issuer
during the Pre-Funding Period does not result in the Securities
receiving a lower credit rating from a Rating Agency upon termination
of the Pre-Funding Period than the rating that was obtained at the time
of the initial issuance of the Securities by the Issuer;
(d) The weighted average annual percentage interest rate (the
average interest rate) for all of the obligations held by the Issuer at
the end of the Pre-Funding Period will not be more than 100 basis
points lower than the average interest rate for the obligations which
were transferred to the Issuer on the Closing Date;
(e) In order to ensure that the characteristics of the receivables
actually acquired during the Pre-Funding Period are substantially
similar to those which were acquired as of the Closing Date, the
characteristics of the additional obligations will either be monitored
by a credit support provider or other insurance provider which is
independent of the Sponsor or an independent accountant retained by the
Sponsor will provide the Sponsor with a letter (with copies provided to
the Rating Agency, the Underwriter and the Trustee) stating whether or
not the characteristics of the additional obligations conform to the
characteristics of such obligations described in the prospectus,
private placement memorandum and/or Pooling and Servicing Agreement. In
preparing such letter, the independent accountant will use the same
type of procedures as were applicable to the obligations which were
transferred as of the Closing Date;
(f) The Pre-Funding Period shall be described in the prospectus or
private placement memorandum provided to investing plans; and
(g) The Trustee of the Trust (or any agent with which the Trustee
contracts to provide Trust services) will be a substantial financial
institution or trust company experienced in trust activities and
familiar with its duties, responsibilities and liabilities as a
fiduciary under the Act. The Trustee, as the legal owner of the
obligations in the Trust or the holder of a security interest in the
obligations held by the Issuer, will enforce all the rights created in
favor of securityholders of the Issuer, including employee benefit
plans subject to the Act;
(8) In order to insure that the assets of the Issuer may not be
reached by creditors of the Sponsor in the event of bankruptcy or other
insolvency of the Sponsor:
(a) The legal documents establishing the Issuer will contain:
(i) Restrictions on the Issuer's ability to borrow money or issue
debt other than in connection with the securitization;
(ii) Restrictions on the Issuer merging with another entity,
reorganizing, liquidating or selling assets (other than in connection
with the securitization);
(iii) Restrictions limiting the authorized activities of the Issuer
to activities relating to the securitization;
(iv) If the Issuer is not a Trust, provisions for the election of
at least one independent director/partner/member whose affirmative
consent is required before a voluntary bankruptcy petition can be filed
by the Issuer; and
(v) If the Issuer is not a Trust, requirements that each
independent director/partner/member must be an individual that does not
have a significant interest in, or other relationships with, the
Sponsor or any of its Affiliates; and
[[Page 59006]]
(b) The Pooling and Servicing Agreement and/or other agreements
establishing the contractual relationships between the parties to the
securitization transaction will contain covenants prohibiting all
parties thereto from filing an involuntary bankruptcy petition against
the Issuer or initiating any other form of insolvency proceeding until
after the Securities have been paid; and
(c) Prior to the issuance by the Issuer of any Securities, a legal
opinion is received which states that either:
(i) A ``true sale'' of the assets being transferred to the Issuer
by the Sponsor has occurred and that such transfer is not being made
pursuant to a financing of the assets by the Sponsor; or
(ii) In the event of insolvency or receivership of the Sponsor, the
assets transferred to the Issuer will not be part of the estate of the
Sponsor;
(9) If a particular class of Securities held by any plan involves a
Ratings Dependent or Non-Ratings Dependent Swap entered into by the
Issuer, then each particular swap transaction relating to such
Securities:
(a) Shall be an Eligible Swap;
(b) Shall be with an Eligible Swap Counterparty;
(c) In the case of a Ratings Dependent Swap, shall provide that if
the credit rating of the counterparty is withdrawn or reduced by any
Rating Agency below a level specified by the Rating Agency, the
Servicer (as agent for the Trustee) shall, within the period specified
under the Pooling and Servicing Agreement:
(i) Obtain a replacement swap agreement with an Eligible Swap
Counterparty which is acceptable to the Rating Agency and the terms of
which are substantially the same as the current swap agreement (at
which time the earlier swap agreement shall terminate); or
(ii) Cause the swap counterparty to establish any collateralization
or other arrangement satisfactory to the Rating Agency such that the
then current rating by the Rating Agency of the particular class of
Securities will not be withdrawn or reduced.
In the event that the Servicer fails to meet its obligations under
this subsection II.A.(9)(c), plan securityholders will be notified in
the immediately following Trustee's periodic report which is provided
to securityholders, and sixty days after the receipt of such report,
the exemptive relief provided under section I.C. will prospectively
cease to be applicable to any class of Securities held by a plan which
involves such Ratings Dependent Swap; provided that in no event will
such plan securityholders be notified any later than the end of the
second month that begins after the date on which such failure occurs.
(d) In the case of a Non-Ratings Dependent Swap, shall provide
that, if the credit rating of the counterparty is withdrawn or reduced
below the lowest level specified in section III.GG., the Servicer (as
agent for the Trustee) shall within a specified period after such
rating withdrawal or reduction:
(i) Obtain a replacement swap agreement with an Eligible Swap
Counterparty, the terms of which are substantially the same as the
current swap agreement (at which time the earlier swap agreement shall
terminate); or
(ii) Cause the swap counterparty to post collateral with the
Trustee in an amount equal to all payments owed by the counterparty if
the swap transaction were terminated; or
(iii) Terminate the swap agreement in accordance with its terms;
and
(e) Shall not require the Issuer to make any termination payments
to the counterparty (other than a currently scheduled payment under the
swap agreement) except from Excess Spread or other amounts that would
otherwise be payable to the Servicer or the Sponsor;
(10) Any class of Securities, to which one or more swap agreements
entered into by the Issuer applies, may be acquired or held in reliance
upon this Underwriter Exemption only by Qualified Plan Investors; and
(11) Prior to the issuance of any debt securities, a legal opinion
is received which states that the debt holders have a perfected
security interest in the Issuer's assets.
B. Neither any Underwriter, Sponsor, Trustee, Servicer, Insurer or
any Obligor, unless it or any of its Affiliates has discretionary
authority or renders investment advice with respect to the plan assets
used by a plan to acquire Securities, shall be denied the relief
provided under section I., if the provision of subsection II.A.(6) is
not satisfied with respect to acquisition or holding by a plan of such
Securities, provided that (1) such condition is disclosed in the
prospectus or private placement memorandum; and (2) in the case of a
private placement of Securities, the Trustee obtains a representation
from each initial purchaser which is a plan that it is in compliance
with such condition, and obtains a covenant from each initial purchaser
to the effect that, so long as such initial purchaser (or any
transferee of such initial purchaser's Securities) is required to
obtain from its transferee a representation regarding compliance with
the Securities Act of 1933, any such transferees will be required to
make a written representation regarding compliance with the condition
set forth in subsection II.A.(6).
III. Definitions
For purposes of this exemption:
A. ``Security'' means:
(1) A pass-through certificate or trust certificate that represents
a beneficial ownership interest in the assets of an Issuer which is a
Trust and which entitles the holder to payments of principal, interest
and/or other payments made with respect to the assets of such Trust; or
(2) A security which is denominated as a debt instrument that is
issued by, and is an obligation of, an Issuer; with respect to which
the Underwriter is either (i) the sole underwriter or the manager or
co-manager of the underwriting syndicate, or (ii) a selling or
placement agent.
B. ``Issuer'' means an investment pool, the corpus or assets of
which are held in trust (including a grantor or owner Trust) or whose
assets are held by a partnership, special purpose corporation or
limited liability company (which Issuer may be a Real Estate Mortgage
Investment Conduit (REMIC) or a Financial Asset Securitization
Investment Trust (FASIT) within the meaning of section 860D(a) or
section 860L, respectively, of the Code); and the corpus or assets of
which consist solely of:
(1) (a) Secured consumer receivables that bear interest or are
purchased at a discount (including, but not limited to, home equity
loans and obligations secured by shares issued by a cooperative housing
association); and/or
(b) Secured credit instruments that bear interest or are purchased
at a discount in transactions by or between business entities
(including, but not limited to, Qualified Equipment Notes Secured by
Leases); and/or
(c) Obligations that bear interest or are purchased at a discount
and which are secured by single-family residential, multi-family
residential and/or commercial real property (including obligations
secured by leasehold interests on residential or commercial real
property); and/or
(d) Obligations that bear interest or are purchased at a discount
and which are secured by motor vehicles or equipment, or Qualified
Motor Vehicle Leases; and/or
(e) Guaranteed governmental mortgage pool certificates, as defined
in 29 CFR 2510.3-101(i)(2) \5\; and/or
---------------------------------------------------------------------------
\5\ In ERISA Advisory Opinion 99-05A (Feb. 22, 1999), the
Department expressed its view that mortgage pool certificates
guaranteed and issued by the Federal Agricultural Mortgage
Corporation (``Farmer Mac'') meet the definition of a guaranteed
governmental mortgage pool certificate as defined in 29 CFR 2510.3-
101(i)(2).
---------------------------------------------------------------------------
[[Page 59007]]
(f) Fractional undivided interests in any of the obligations
described in clauses (a)-(e) of this subsection B.(1).\6\
---------------------------------------------------------------------------
\6\ It is the Department's view that the definition of Issuer
contained in subsection III.B. includes a two-tier structure under
which Securities issued by the first Issuer, which contains a pool
of receivables described above, are transferred to a second Issuer
which issues Securities that are sold to plans. However, the
Department is of the further view that, since the Underwriter
Exemption generally provides relief only for the direct or indirect
acquisition or disposition of Securities that are not subordinated,
no relief would be available if the Securities held by the second
Issuer were subordinated to the rights and interests evidenced by
other Securities issued by the first Issuer, unless such Securities
were issued in a Designated Transaction.
---------------------------------------------------------------------------
Notwithstanding the foregoing, residential and home equity loan
receivables issued in Designated Transactions may be less than fully
secured, provided that: (i) The rights and interests evidenced by the
Securities issued in such Designated Transactions (as defined in
section III.DD.) are not subordinated to the rights and interests
evidenced by Securities of the same Issuer; (ii) such Securities
acquired by the plan have received a rating from a Rating Agency at the
time of such acquisition that is in one of the two highest generic
rating categories; and (iii) any obligation included in the corpus or
assets of the Issuer must be secured by collateral whose fair market
value on the Closing Date of the Designated Transaction is at least
equal to 80% of the sum of: (I) The outstanding principal balance due
under the obligation which is held by the Issuer and (II) the
outstanding principal balance(s) of any other obligation(s) of higher
priority (whether or not held by the Issuer) which are secured by the
same collateral.
(2) Property which had secured any of the obligations described in
subsection III.B.(1);
(3) (a) Undistributed cash or temporary investments made therewith
maturing no later than the next date on which distributions are made to
securityholders; and/or
(b) Cash or investments made therewith which are credited to an
account to provide payments to securityholders pursuant to any Eligible
Swap Agreement meeting the conditions of subsection II.A.(9) or
pursuant to any Eligible Yield Supplement Agreement; and/or
(c) Cash transferred to the Issuer on the Closing Date and
permitted investments made therewith which:
(i) Are credited to a Pre-Funding Account established to purchase
additional obligations with respect to which the conditions set forth
in paragraphs (a)-(g) of subsection II.A.(7) are met; and/or
(ii) Are credited to a Capitalized Interest Account; and
(iii) Are held by the Issuer for a period ending no later than the
first distribution date to securityholders occurring after the end of
the Pre-Funding Period.
For purposes of this paragraph (c) of subsection III.B.(3), the
term ``permitted investments'' means investments which: (i) Are either:
(x) Direct obligations of, or obligations fully guaranteed as to timely
payment of principal and interest by, the United States or any agency
or instrumentality thereof, provided that such obligations are backed
by the full faith and credit of the United States or (y) have been
rated (or the Obligor has been rated) in one of the three highest
generic rating categories by a Rating Agency; (ii) are described in the
Pooling and Servicing Agreement; and (iii) are permitted by the Rating
Agency.
(4) Rights of the Trustee under the Pooling and Servicing
Agreement, and rights under any insurance policies, third-party
guarantees, contracts of suretyship, Eligible Yield Supplement
Agreements, Eligible Swap Agreements meeting the conditions of
subsection II.A.(9) or other credit support arrangements with respect
to any obligations described in subsection III.B.(1).
Notwithstanding the foregoing, the term ``Issuer'' does not include
any investment pool unless: (i) The assets of the type described in
paragraphs (a)-(f) of subsection III.B.(1) which are contained in the
investment pool have been included in other investment pools, (ii)
Securities evidencing interests in such other investment pools have
been rated in one of the three (or in the case of Designated
Transactions, four) highest generic rating categories by a Rating
Agency for at least one year prior to the plan's acquisition of
Securities pursuant to this Underwriter Exemption, and (iii) Securities
evidencing interests in such other investment pools have been purchased
by investors other than plans for at least one year prior to the plan's
acquisition of Securities pursuant to this Underwriter Exemption.
C.(1) ``Underwriter'' means:
(a) First Union;
(b) Any person directly or indirectly, through one or more
intermediaries, controlling, controlled by or under common control with
First Union; or
(c) Any member of an underwriting syndicate or selling group of
which a person described in subsections III.C.(1)(a) or (b) is a
manager or co-manager with respect to the Securities.
(2) Effective December 31, 2008 through June 30, 2009,
``Underwriter'' means:
(a) Wachovia or J.P. Morgan Securities Inc.;
(b) Any person directly or indirectly, through one or more
intermediaries, controlling, controlled by or under common control with
such entities; or
(c) Any member of an underwriting syndicate or selling group of
which such firm or person described in subsections III.C.(2)(a) or (b)
is a manager or co-manager with respect to the Securities.
D. ``Sponsor'' means:
(1) The entity that organizes an Issuer by depositing obligations
therein in exchange for Securities; or
(2) Effective December 31, 2008 through June 30, 2009, for those
transactions listed on the Securitization List at section III.KK.
[section III.LL. of PTE 2002-19], Wachovia.
E. ``Master Servicer'' means the entity that is a party to the
Pooling and Servicing Agreement relating to assets of the Issuer and is
fully responsible for servicing, directly or through Subservicers, the
assets of the Issuer.
F. ``Subservicer'' means an entity which, under the supervision of
and on behalf of the Master Servicer, services loans contained in the
Issuer, but is not a party to the Pooling and Servicing Agreement.
G. ``Servicer'' means any entity which services loans contained in
the Issuer, including the Master Servicer and any Subservicer.
H. ``Trust'' means an Issuer which is a trust (including an owner
trust, grantor trust or a REMIC or FASIT which is organized as a
Trust).
I. ``Trustee'' means the Trustee of any Trust which issues
Securities and also includes an Indenture Trustee. ``Indenture
Trustee'' means the Trustee appointed under the indenture pursuant to
which the subject Securities are issued, the rights of holders of the
Securities are set forth and a security interest in the Trust assets in
favor of the holders of the Securities is created. The Trustee or the
Indenture Trustee is also a party to or beneficiary of all the
documents and instruments transferred to the Issuer, and as such, has
both the authority to, and the responsibility for, enforcing all the
rights created thereby in favor of holders of the Securities, including
those rights arising in the event of default by the Servicer.
J. ``Insurer'' means the insurer or guarantor of, or provider of
other credit
[[Page 59008]]
support for, an Issuer. Notwithstanding the foregoing, a person is not
an insurer solely because it holds Securities representing an interest
in an Issuer which are of a class subordinated to Securities
representing an interest in the same Issuer.
K. ``Obligor'' means any person, other than the Insurer, that is
obligated to make payments with respect to any obligation or receivable
included in the Issuer. Where an Issuer contains Qualified Motor
Vehicle Leases or Qualified Equipment Notes Secured by Leases,
``Obligor'' shall also include any owner of property subject to any
lease included in the Issuer, or subject to any lease securing an
obligation included in the Issuer.
L. ``Excluded Plan'' means any plan with respect to which any
member of the Restricted Group is a ``plan sponsor'' within the meaning
of section 3(16)(B) of the Act.
M. ``Restricted Group'' with respect to a class of Securities
means:
(1) Each Underwriter;
(2) Each Insurer;
(3) The Sponsor;
(4) The Trustee;
(5) Each Servicer;
(6) Any Obligor with respect to obligations or receivables included
in the Issuer constituting more than 5 percent of the aggregate
unamortized principal balance of the assets in the Issuer, determined
on the date of the initial issuance of Securities by the Issuer;
(7) Each counterparty in an Eligible Swap Agreement; or
(8) Any Affiliate of a person described in subsections III.M.(1)-
(7).
N. ``Affiliate'' of another person includes:
(1) Any person directly or indirectly, through one or more
intermediaries, controlling, controlled by, or under common control
with such other person;
(2) Any officer, director, partner, employee, relative (as defined
in section 3(15) of the Act), a brother, a sister, or a spouse of a
brother or sister of such other person; and
(3) Any corporation or partnership of which such other person is an
officer, director or partner.
O. ``Control'' means the power to exercise a controlling influence
over the management or policies of a person other than an individual.
P. A person will be ``independent'' of another person only if:
(1) Such person is not an Affiliate of that other person; and
(2) The other person, or an Affiliate thereof, is not a fiduciary
who has investment management authority or renders investment advice
with respect to any assets of such person.
Q. ``Sale'' includes the entrance into a Forward Delivery
Commitment, provided:
(1) The terms of the Forward Delivery Commitment (including any fee
paid to the investing plan) are no less favorable to the plan than they
would be in an arm's-length transaction with an unrelated party;
(2) The prospectus or private placement memorandum is provided to
an investing plan prior to the time the plan enters into the Forward
Delivery Commitment; and
(3) At the time of the delivery, all conditions of this Underwriter
Exemption applicable to sales are met.
R. ``Forward Delivery Commitment'' means a contract for the
purchase or sale of one or more Securities to be delivered at an agreed
future settlement date. The term includes both mandatory contracts
(which contemplate obligatory delivery and acceptance of the
Securities) and optional contracts (which give one party the right but
not the obligation to deliver Securities to, or demand delivery of
Securities from, the other party).
S. ``Reasonable Compensation'' has the same meaning as that term is
defined in 29 CFR 2550.408c-2.
T. ``Qualified Administrative Fee'' means a fee which meets the
following criteria:
(1) The fee is triggered by an act or failure to act by the Obligor
other than the normal timely payment of amounts owing in respect of the
obligations;
(2) The Servicer may not charge the fee absent the act or failure
to act referred to in subsection III.T.(1);
(3) The ability to charge the fee, the circumstances in which the
fee may be charged, and an explanation of how the fee is calculated are
set forth in the Pooling and Servicing Agreement; and
(4) The amount paid to investors in the Issuer will not be reduced
by the amount of any such fee waived by the Servicer.
U. ``Qualified Equipment Note Secured By A Lease'' means an
equipment note:
(1) Which is secured by equipment which is leased;
(2) Which is secured by the obligation of the lessee to pay rent
under the equipment lease; and
(3) With respect to which the Issuer's security interest in the
equipment is at least as protective of the rights of the Issuer as the
Issuer would have if the equipment note were secured only by the
equipment and not the lease.
V. ``Qualified Motor Vehicle Lease'' means a lease of a motor
vehicle where:
(1) The Issuer owns or holds a security interest in the lease;
(2) The Issuer owns or holds a security interest in the leased
motor vehicle; and
(3) The Issuer's security interest in the leased motor vehicle is
at least as protective of the Issuer's rights as the Issuer would
receive under a motor vehicle installment loan contract.
W. ``Pooling and Servicing Agreement'' means the agreement or
agreements among a Sponsor, a Servicer and the Trustee establishing a
Trust. ``Pooling and Servicing Agreement'' also includes the indenture
entered into by the Issuer and the Indenture Trustee.
X. ``Rating Agency'' means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc.; Moody's Investors Service,
Inc.; FitchRatings, Inc.; DBRS Limited, or DBRS, Inc.; or any
successors thereto.
Y. ``Capitalized Interest Account'' means an Issuer account: (i)
which is established to compensate securityholders for shortfalls, if
any, between investment earnings on the Pre-Funding Account and the
interest rate payable under the Securities; and (ii) which meets the
requirements of paragraph (c) of subsection III.B.(3).
Z. ``Closing Date'' means the date the Issuer is formed, the
Securities are first issued and the Issuer's assets (other than those
additional obligations which are to be funded from the Pre-Funding
Account pursuant to subsection II.A.(7)) are transferred to the Issuer.
AA. ``Pre-Funding Account'' means an Issuer account: (i) Which is
established to purchase additional obligations, which obligations meet
the conditions set forth in paragraph (a)-(g) of subsection II.A.(7);
and (ii) which meets the requirements of paragraph (c) of subsection
III.B.(3).
BB. ``Pre-Funding Limit'' means a percentage or ratio of the amount
allocated to the Pre-Funding Account, as compared to the total
principal amount of the Securities being offered, which is less than or
equal to 25 percent.
CC. ``Pre-Funding Period'' means the period commencing on the
Closing Date and ending no later than the earliest to occur of: (i) The
date the amount on deposit in the Pre-Funding Account is less than the
minimum dollar amount specified in the Pooling and Servicing Agreement;
(ii) the date on which an event of default occurs under the Pooling and
Servicing Agreement; or (iii) the date which is the later of three
months or ninety days after the Closing Date.
DD. ``Designated Transaction'' means a securitization transaction
in which the
[[Page 59009]]
assets of the Issuer consist of secured consumer receivables, secured
credit instruments or secured obligations that bear interest or are
purchased at a discount and are: (i) Motor vehicle, home equity and/or
manufactured housing consumer receivables; and/or (ii) motor vehicle
credit instruments in transactions by or between business entities;
and/or (iii) single-family residential, multi-family residential, home
equity, manufactured housing and/or commercial mortgage obligations
that are secured by single-family residential, multi-family
residential, commercial real property or leasehold interests therein.
For purposes of this section III.DD., the collateral securing motor
vehicle consumer receivables or motor vehicle credit instruments may
include motor vehicles and/or Qualified Motor Vehicle Leases.
EE. ``Ratings Dependent Swap'' means an interest rate swap, or (if
purchased by or on behalf of the Issuer) an interest rate cap contract,
that is part of the structure of a class of Securities where the rating
assigned by the Rating Agency to any class of Securities held by any
plan is dependent on the terms and conditions of the swap and the
rating of the counterparty, and if such Security rating is not
dependent on the existence of the swap and rating of the counterparty,
such swap or cap shall be referred to as a ``Non-Ratings Dependent
Swap''. With respect to a Non-Ratings Dependent Swap, each Rating
Agency rating the Securities must confirm, as of the date of issuance
of the Securities by the Issuer, that entering into an Eligible Swap
with such counterparty will not affect the rating of the Securities.
FF. ``Eligible Swap'' means a Ratings Dependent or Non-Ratings
Dependent Swap:
(1) Which is denominated in U.S. dollars;
(2) Pursuant to which the Issuer pays or receives, on or
immediately prior to the respective payment or distribution date for
the class of Securities to which the swap relates, a fixed rate of
interest, or a floating rate of interest based on a publicly available
index (e.g., LIBOR or the U.S. Federal Reserve's Cost of Funds Index
(COFI)), with the Issuer receiving such payments on at least a
quarterly basis and obligated to make separate payments no more
frequently than the counterparty, with all simultaneous payments being
netted;
(3) Which has a notional amount that does not exceed either: (i)
The principal balance of the class of Securities to which the swap
relates, or (ii) the portion of the principal balance of such class
represented solely by those types of corpus or assets of the Issuer
referred to in subsections III.B.(1), (2) and (3);
(4) Which is not leveraged (i.e., payments are based on the
applicable notional amount, the day count fractions, the fixed or
floating rates designated in subsection III.FF.(2), and the difference
between the products thereof, calculated on a one to one ratio and not
on a multiplier of such difference);
(5) Which has a final termination date that is either the earlier
of the date on which the Issuer terminates or the related class of
securities is fully repaid; and
(6) Which does not incorporate any provision which could cause a
unilateral alteration in any provision described in subsections
III.FF.(1) through (4) without the consent of the Trustee.
GG. ``Eligible Swap Counterparty'' means a bank or other financial
institution which has a rating, at the date of issuance of the
Securities by the Issuer, which is in one of the three highest long-
term credit rating categories, or one of the two highest short-term
credit rating categories, utilized by at least one of the Rating
Agencies rating the Securities; provided that, if a swap counterparty
is relying on its short-term rating to establish eligibility under the
Underwriter Exemption, such swap counterparty must either have a long-
term rating in one of the three highest long-term rating categories or
not have a long-term rating from the applicable Rating Agency, and
provided further that if the class of Securities with which the swap is
associated has a final maturity date of more than one year from the
date of issuance of the Securities, and such swap is a Ratings
Dependent Swap, the swap counterparty is required by the terms of the
swap agreement to establish any collateralization or other arrangement
satisfactory to the Rating Agencies in the event of a ratings downgrade
of the swap counterparty.
HH. ``Qualified Plan Investor'' means a plan investor or group of
plan investors on whose behalf the decision to purchase Securities is
made by an appropriate independent fiduciary that is qualified to
analyze and understand the terms and conditions of any swap transaction
used by the Issuer and the effect such swap would have upon the credit
ratings of the Securities. For purposes of the Underwriter Exemption,
such a fiduciary is either:
(1) A ``qualified professional asset manager'' (QPAM),\7\ as
defined under Part V(a) of PTE 84-14, 49 FR 9494, 9506 (March 13,
1984), as amended by 70 FR 49305 (August 23, 2005);
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\7\ PTE 84-14 provides a class exemption for transactions
between a party in interest with respect to an employee benefit plan
and an investment fund (including either a single customer or pooled
separate account) in which the plan has an interest, and which is
managed by a QPAM, provided certain conditions are met. QPAMs (e.g.,
banks, insurance companies, registered investment advisers with
total client assets under management in excess of $85 million) are
considered to be experienced investment managers for plan investors
that are aware of their fiduciary duties under ERISA.
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(2) An ``in-house asset manager'' (INHAM),\8\ as defined under Part
IV(a) of PTE 96-23, 61 FR 15975, 15982 (April 10, 1996); or
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\8\ PTE 96-23 permits various transactions involving employee
benefit plans whose assets are managed by an INHAM, an entity which
is generally a subsidiary of an employer sponsoring the plan which
is a registered investment adviser with management and control of
total assets attributable to plans maintained by the employer and
its affiliates which are in excess of $50 million.
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(3) A plan fiduciary with total assets under management of at least
$100 million at the time of the acquisition of such Securities.
II. ``Excess Spread'' means, as of any day funds are distributed
from the Issuer, the amount by which the interest allocated to
Securities exceeds the amount necessary to pay interest to
securityholders, servicing fees and expenses.
JJ. ``Eligible Yield Supplement Agreement'' means any yield
supplement agreement, similar yield maintenance arrangement or, if
purchased by or on behalf of the Issuer, an interest rate cap contract
to supplement the interest rates otherwise payable on obligations
described in subsection III.B.(1). Such an agreement or arrangement may
involve a notional principal contract provided that:
(1) It is denominated in U.S. dollars;
(2) The Issuer receives on, or immediately prior to the respective
payment date for the Securities covered by such agreement or
arrangement, a fixed rate of interest or a floating rate of interest
based on a publicly available index (e.g., LIBOR or COFI), with the
Issuer receiving such payments on at least a quarterly basis;
(3) It is not ``leveraged'' as described in subsection III.FF.(4);
(4) It does not incorporate any provision which would cause a
unilateral alteration in any provision described in subsections
III.JJ.(1)-(3) without the consent of the Trustee;
(5) It is entered into by the Issuer with an Eligible Swap
Counterparty; and
(6) It has a notional amount that does not exceed either: (i) The
principal balance of the class of Securities to which such agreement or
arrangement
[[Page 59010]]
relates, or (ii) the portion of the principal balance of such class
represented solely by those types of corpus or assets of the Issuer
referred to in subsections III.B.(1), (2) and (3).
KK. [LL. Of PTE 2002-19] Effective December 31, 2008 through June
30, 2009, ``Securitization List'' means:
----------------------------------------------------------------------------------------------------------------
Name Issuance type Wachovia role Exemption
----------------------------------------------------------------------------------------------------------------
First Union Commercial Mortgage Trust CMBS.................... Master Servicer: First Union 96-22
FUNB Series 1999-C1. National Bank.
Sponsor: First Union National Bank
Underwriter: First Union Capital
Markets.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2003-C6. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2003-C8. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2004-C10. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2004-C11. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2006-C23. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2006-C25. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2002-C01. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: First Union
Securities, Inc.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2002-C2. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Securities,
Inc.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2003-C3. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Securities,
Inc.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2003-C5. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Securities,
Inc.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2003-C7. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Securities,
Inc.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2004-C15. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Banc of America Commercial Mortgage CMBS.................... Master Servicer: First Union 96-22
Trust, Series 2001-3. National Bank.
Sponsor: First Union National Bank
Underwriter: First Union
Securities, Inc.
First Union Commercial Mortgage CMBS.................... Master Servicer: First Union 96-22
Trust, Series 2001-C4. National Bank.
Sponsor: First Union National Bank
Underwriter: First Union
Securities, Inc.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2003-C4. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Securities,
Inc.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2003-C9. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2005-C16. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2005-C17. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
COBALT CMBS Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2006-C1. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
COBALT CMBS Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2007-C2. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
COBALT CMBS Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2007-C3. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2006-C27. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
[[Page 59011]]
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2006-C29. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2007-C32. N.A.
Swap Provider: Wachovia Bank, N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series, 2005-C22. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2007-C33. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2007-C34. N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
J.P. Morgan Chase Commercial Mortgage CMBS.................... Servicer: Wachovia Bank, N.A...... 2002-19
Securities Corp., Series 2002-C1. Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Securities,
Inc. (but note that PTE 96-22 is
not relied on in the disclosure
document).
Wachovia Bank Commercial Mortgage CMBS.................... Servicer: Wachovia Bank, N.A...... 96-22
Trust, Series 2006 WHALE 7. Special Servicer: Wachovia Bank,
N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2005-C21. N.A.
Swap Provider: Wachovia Bank, N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2005-C19. N.A.
Swap Provider: Wachovia Bank, N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2006-C26. N.A.
Swap Provider: Wachovia Bank, N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2006-C28. N.A.
Swap Provider: Wachovia Bank, N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2007-C30. N.A.
Swap Provider: Wachovia Bank, N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2007-C31. N.A.
Swap Provider: Wachovia Bank, N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Master Servicer: Wachovia Bank, 96-22
Trust, Series 2007-ESH. N.A.
Special Servicer: Wachovia Bank,
N.A.
Swap Provider: Wachovia Bank, N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
Wachovia Bank Commercial Mortgage CMBS.................... Servicer: Wachovia Bank, N.A...... 96-22
Trust, Series 2005-WHALE 6. Special Servicer: Wachovia Bank,
N.A.
Sponsor: Wachovia Bank, N.A.......
Underwriter: Wachovia Capital
Markets, LLC.
First Union--Lehman Brothers Wells CMBS.................... Master Servicer: First Union 96-22
Fargo, Series 1998-C2. National Bank.
Sponsor: First Union National Bank
Underwriter: First Union Capital
Markets.
----------------------------------------------------------------------------------------------------------------
Legend: CMBS = Commercial mortgage-backed securitizations.
Effective Date: This amendment was effective December 31, 2008.
For a more complete statement of the facts and representations
supporting the Department's decision to amend PTE 96-22 and PTE 2002-
19, refer to the notice of proposed exemption that was published on
August 28, 2009 in the Federal Register at 74 FR 44387.
For Further Information Contact: Wendy M. McColough of the
Department, telephone (202) 693-8540. (This is not a toll-free number.)
The Alaska Laborers-Construction Industry Apprenticeship Training
Trust (the Plan) Located in Seattle, WA
[Prohibited Transaction Exemption 2009-32; Exemption Application No.
L-11482]
[[Page 59012]]
Exemption
The restrictions of sections 406(a), 406(b)(1) and (b)(2) of the
Act shall not apply to the purchase by the Plan of certain unimproved
real property (the Property) from the Alaska Construction & General
Laborers 942 Building Association, Inc. (the Building Association), an
entity owned by Local 942, Laborers International Union of North
America, a party in interest with respect to the Plan, provided that
the following conditions are satisfied:
(a) The terms and conditions of the proposed transaction are no
less favorable to the Plan than those which the Plan would receive in
an arm's length transaction with an unrelated party.
(b) The purchase of the Property is a one-time transaction for
cash.
(c) The Plan does not pay any real estate commissions, fees, or
other similar expenses to any party as a result of the proposed
transaction.
(d) The Plan purchases the Property from the Building Association
for the lesser of (1) $62,791 or (2) the fair market value of the
Property as determined on the date of such transaction by a qualified,
independent appraiser.
(e) The proposed transaction is consummated only after an
independent fiduciary (1) determines that proceeding with the
transaction is in the best interests of the Plan and its participants
and beneficiaries and (2) negotiates the relevant terms and conditions
of such transaction.
(f) The independent fiduciary calculates, on the date of the
transaction (using the applicable certificate of deposit rate in
effect), the amount of interest owed to the Plan based upon its earnest
money deposit for the Property.
(g) On the date of the transaction, the Plan's legal counsel pays
all interest owed the Plan resulting from counsel's placement of the
Plan's earnest money deposit for the Property in a non-interest bearing
account.
(h) The independent fiduciary monitors the proposed transaction on
behalf of the Plan to ensure compliance with the agreed upon terms.
Written Comments
In the notice of proposed exemption, the Department invited all
interested persons to submit written comments and requests for a
hearing with respect to the proposed exemption within (60) sixty days
of the publication of the notice of pendency in the Federal Register on
August 28, 2009. All comments and requests for a hearing were due by
October 27, 2009.
During the comment period, the Department received one written
comment from a Plan participant, who expressed approval of the proposed
exemption, and no requests for a public hearing. The Department also
received four telephone inquiries from participants concerning the
substance of the proposed transaction and the effect the exemption
might have on the participants' benefits.
Accordingly, the Department has considered the entire record and
has determined to grant the exemption. For a more complete statement of
the facts and representations supporting the Department's decision to
grant this exemption, refer to the notice of proposed exemption
published on August 28, 2009 at 74 FR 44396.
For Further Information Contact: Ms. Jan D. Broady of the
Department, telephone (202) 693-8556. (This is not a toll-free number.)
General Information
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption
under section 408(a) of the Act and/or section 4975(c)(2) of the Code
does not relieve a fiduciary or other party in interest or disqualified
person from certain other provisions to which the exemption does not
apply and the general fiduciary responsibility provisions of section
404 of the Act, which among other things require a fiduciary to
discharge his duties respecting the plan solely in the interest of the
participants and beneficiaries of the plan and in a prudent fashion in
accordance with section 404(a)(1)(B) of the Act; nor does it affect the
requirement of section 401(a) of the Code that the plan must operate
for the exclusive benefit of the employees of the employer maintaining
the plan and their beneficiaries;
(2) This exemption is supplemental to and not in derogation of, any
other provisions of the Act and/or the Code, including statutory or
administrative exemptions and transactional rules. Furthermore, the
fact that a transaction is subject to an administrative or statutory
exemption is not dispositive of whether the transaction is in fact a
prohibited transaction; and
(3) The availability of this exemption is subject to the express
condition that the material facts and representations contained in the
application accurately describes all material terms of the transaction
which is the subject of the exemption.
Signed at Washington, DC, this 10th day of November 2009.
Ivan Strasfeld,
Director of Exemption Determinations, Employee Benefits Security
Administration, U.S. Department of Labor.
[FR Doc. E9-27405 Filed 11-13-09; 8:45 am]
BILLING CODE 4510-29-P
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