Notice of a Proposed 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 PTE 2002-19, 67 FR 14979 (March 28, 2002), as Amended by PTE 2007-05 (PTE 2002-19), Involving J.P. Morgan Chase & Company and Its Affiliates (D-11530), 44387-44396 [E9-20736]

Agencies

• Employee Benefits Security Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 74, Number 166 (Friday, August 28, 2009)]
[Notices]
[Pages 44387-44396]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-20736]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration


Notice of a Proposed 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 PTE 2002-19, 67 FR 14979 (March 28, 2002), as Amended by PTE 2007-
05 (PTE 2002-19), Involving J.P. Morgan Chase & Company and Its 
Affiliates (D-11530)

AGENCY: Employee Benefits Security Administration, Department of Labor.

ACTION: Notice of a Proposed Amendment to PTE 96-22 and PTE 2002-19.

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SUMMARY: This document contains a notice of pendency before the 
Department of Labor (the Department) of a proposed amendment to PTE 96-
22 and PTE 2002-19, Underwriter Exemptions.\1\ The Underwriter 
Exemptions are individual exemptions that provide relief for the 
origination and operation of certain asset pool investment trusts and 
the acquisition, holding and disposition by employee benefit plans 
(Plans) of certain asset-backed pass-through certificates representing 
undivided interests in those investment trusts. The proposed amendment 
to PTE 96-22 and PTE 2002-19, if granted, would provide a six-month 
period to resolve certain affiliations, as a result of the Wells Fargo 
& Company (WFC) acquisition of Wachovia, between Wells Fargo Bank, N.A. 
(Wells Fargo) the Trustee, and Wachovia as members of the Restricted 
Group, as those terms are defined in the Underwriter Exemptions (the 
Proposed Amendment). The Proposed Amendment, if granted, would affect 
the participants and beneficiaries of the Plans participating in such 
transactions and the fiduciaries with respect to such Plans.
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    \1\ The ``Underwriter Exemptions'' are a group of individual 
exemptions that provide substantially identical relief for the 
operation of certain asset-backed or mortgage-backed investment 
pools and the acquisition and holding by Plans of certain securities 
representing interests in those investment pools.

DATE: Written comments and requests for a hearing should be received by 
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the Department by September 28, 2009.

ADDRESSES: All written comments and requests for a public hearing 
(preferably, three copies) should be sent to the Office of Exemption 
Determinations, Employee Benefits Security Administration, Room N-5700, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210, (Attention: Exemption Application Number D-11530). Interested 
persons are invited to submit comments and/or hearing requests to the 
Department by the end of the scheduled comment period either by 
facsimile to (202) 219-0204 or by electronic mail to 
moffitt.betty@dol.gov. The application pertaining to the Proposed 
Amendment (Application) and the comments received will be available for 
public inspection in the Public Disclosure Room of the Employee 
Benefits Security Administration, U.S. Department of Labor, Room N-
1513, 200 Constitution Avenue, NW., Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: Wendy M. McColough of the Department, 
telephone (202) 693-8540. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: This document contains a notice of pendency 
before the Department of a proposed exemption to amend PTE 96-22 and 
PTE 2002-19, Underwriter Exemptions. The Underwriter Exemptions are a 
group of individual exemptions granted by the Department that provide 
substantially identical relief from certain of the restrictions of 
sections 406 and 407 of the Employee Retirement Income Security Act of 
1974 (ERISA or the Act) and from the taxes imposed by sections 4975(a) 
and (b) of the Internal Revenue Code of 1986, as amended (Code), by 
reason of certain provisions of section 4975(c)(1) of the Code for the 
operation of certain asset pool investment trusts and the acquisition, 
holding, and disposition by Plans of certain asset-backed pass-through 
certificates representing undivided interests in those investment 
trusts.
    All of the Underwriter Exemptions were amended by PTE 97-34, 62 FR 
39021 (July 21, 1997), PTE 2000-58, 65 FR 67765 (November 13, 2000), 
and PTE 2007-05, 72 FR 13130 (March 20, 2007), as corrected at 72 FR 
16385 (April 4, 2007). Certain of the Underwriter Exemptions were 
amended by PTE 2002-41, 67 FR 54487 (August 22, 2002) or modified by 
PTE 2002-19.
    The Department is proposing this amendment to PTE 96-22 and PTE 
2002-19 pursuant to section 408(a) of the Act and section 4975(c)(2) of 
the Code, and in accordance with the procedures set forth in 29 CFR 
Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990).\2\
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    \2\ Section 102 of Reorganization Plan No. 4 of 1978 (5 U.S.C. 
App. 1 [1996]) generally transferred the authority of the Secretary 
of the Treasury to issue exemptions under section 4975(c)(2) of the 
Code to the Secretary of Labor.
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    1. The Underwriter Exemptions permit Plans to invest in pass-
through securities representing undivided interests in asset-backed or 
mortgage-backed investment pools (Securities). The Securities generally 
take the form of certificates issued by a trust (Trust). The 
Underwriter Exemptions permit transactions involving a Trust, including 
the servicing, management and operation of the Trust, and the sale, 
exchange or transfer of Securities evidencing interests therein, in the 
initial issuance of the Securities or in the secondary market for such 
Securities (the Covered Transactions). The most recent amendment to the 
Underwriter Exemptions is PTE 2007-05, 72 FR 13130 (March 20, 2007), as 
corrected at 72 FR 16385 (April 4, 2007) (PTE 2007-05). One of the 
General Conditions of the Underwriter Exemptions, as amended, requires 
that the Trustee not be an ``Affiliate'' of any member of the 
``Restricted Group'' other than an ``Underwriter.'' PTE 2007-05, 
subsection II.A.(4). The term ``Restricted Group'' is defined under 
section III.M. as: (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).'' The term ``Servicer'' is defined to 
include ``the Master Servicer and any Subservicer.'' PTE 2007-05,

[[Page 44388]]

section III.G. The term ``Affiliate'' is defined, in part, to include 
``(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 * 
* * of such other person; and (3) Any corporation or partnership of 
which such other person is an officer, director or partner.'' PTE 2007-
05, section III.N.
    2. On April 3, 1996, PTE 96-22 was granted to First Union 
Corporation (First Union). On September 1, 2001, Wachovia merged into 
First Union, with First Union being the surviving entity in the merger. 
Simultaneously with this stock-for-stock merger, First Union changed 
its name to Wachovia Corporation (Wachovia). As a result of the merger, 
Wachovia, formerly known as First Union, became owned by the 
shareholders of both First Union and the former Wachovia, with the 
shareholders of First Union owning the majority of the outstanding 
shares. Prior to its acquisition by WFC, Wachovia was a diversified 
financial services company that provided a broad range of retail 
banking and brokerage, asset and wealth management, and corporate and 
investment banking products and services. Wachovia was one of the 
largest providers of financial services in the United States, with 
retail and commercial banking operations in 21 states from Connecticut 
to Florida and west to Texas and California, and nationwide retail 
brokerage, mortgage lending and auto finance businesses. Its retail 
brokerage operations, under the Wachovia Securities brand name, managed 
client assets through offices nationwide. Globally, Wachovia served 
clients in selected corporate and institutional sectors and through 
more than 40 international offices. WFC acquired Wachovia on December 
31, 2008 and the successor continues to engage in the same broad range 
of activities conducted previously by Wachovia.
    3. The Applicant is Wells Fargo (the Applicant), the national 
banking subsidiary of WFC. The Applicant is the Trustee of each of the 
commercial mortgage-backed securitizations in the Covered Transactions. 
The Proposed Amendment was requested by application dated December 31, 
2008, and as updated by Wells Fargo (the Application). The Applicant 
states that on December 31, 2008 (the Acquisition Date), WFC acquired 
Wachovia (the Acquisition). Wachovia is a holding company that, through 
its subsidiaries, provides broker-dealer, investment banking, 
financing, wealth management, advisory, insurance, lending and related 
products and services on a global basis. Wachovia is a ``Consolidated 
Supervised Entity,'' \3\ and is subject to group-wide supervision by 
the Securities and Exchange Commission (SEC). On March 4, 2009, the 
Applicant explained that Wachovia is the ultimate parent of all of its 
subsidiaries, and was (prior to its acquisition by WFC) a publicly 
traded holding company. Among the direct subsidiaries of Wachovia, each 
100% owned by Wachovia, are Wachovia Bank, N.A., Wachovia Capital 
Markets, LLC, Wachovia Securities, Inc., First Union National Bank, 
First Union Capital Markets and First Union Securities, Inc.
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    \3\ Effective August 2004, the Securities and Exchange 
Commission (SEC) adopted rule amendments that established a 
voluntary, alternative method for computing net capital for certain 
broker-dealers. As a condition to its use of the alternative method, 
a broker-dealer's ultimate holding company and affiliates (referred 
to collectively as a consolidated supervised entity or CSE) must 
consent to group-wide SEC supervision. These rules, among other 
things, respond to international developments. Specifically, 
affiliates of certain U.S. broker-dealers that conduct business in 
the European Union (EU) have stated that they must demonstrate that 
they are subject to consolidated supervision at the ultimate holding 
company level that is ``equivalent'' to EU consolidated supervision. 
SEC supervision incorporated into these rule amendments addresses 
this standard. These amendments and the SEC's program for 
consolidated supervision of broker-dealers and affiliates will 
minimize duplicative regulatory burdens on firms that are active in 
the EU, as well as in other jurisdictions that may have similar 
laws.
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    For the Covered Transactions that are the subject of the 
Applicant's request, First Union National Bank is the Sponsor of 4 
transactions and Wachovia Bank, N.A. is the Sponsor of 35 transactions.
    4. The Acquisition caused certain transactions previously subject 
to PTE 96-22 or PTE 2002-19 to fail to satisfy the requirement under 
the Underwriter Exemptions that the Trustee not be an Affiliate of any 
member of the Restricted Group other than an Underwriter. PTE 2007-05 
subsection II.A.(4). Currently, for transactions where Wachovia is the 
Servicer, a six-month period is provided by the Underwriter Exemptions 
to sever the affiliation between the Servicer and the Trustee if the 
affiliation occurred after the initial issuance of the Securities. PTE 
2007-05, subsection II.A.(4)(b).\4\ However, there is currently no 
transitional relief under PTE 96-22 where Wachovia is a Sponsor, 
Underwriter or a Swap Counterparty and Wells Fargo is the Trustee. 
Accordingly, Wells Fargo seeks a temporary amendment to PTE 96-22 to 
provide for a six-month period for resolution of certain prohibited 
affiliations caused by the Acquisition of Wachovia by WFC, the parent 
of the Trustee.
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    \4\ But see, below at Paragraph 10., the Department's discussion 
on the ``Split Loan'' Transactions.
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    In addition, the Applicant requests that the amendment provide 
similar relief for one other Covered Transaction which is subject to 
PTE 2002-19. The specified Covered Transaction is the J.P. Morgan Chase 
Commercial Mortgage Securities Corp., Series 2002-C1 (Series 2002-C1), 
where Wells Fargo is Trustee and Wachovia is the Sponsor and Master 
Servicer. In this transaction, one of the Underwriters is Wachovia 
Securities but PTE 96-22 was not relied on in the relevant disclosure 
documents. The other Underwriter in Series 2002-C1 is J.P. Morgan 
Securities Inc., which is unrelated to Wells Fargo, and relies upon PTE 
2002-19, granted to J.P. Morgan Chase & Co. and its affiliates. The 
Applicant provides that J.P. Morgan Securities Inc. is the principal 
nonbank subsidiary of JP Morgan Chase & Co. (previously, J.P. Morgan 
Chase & Co.). JP Morgan Chase Commercial Mortgage Securities Corp. is 
100% owned by JPMorgan Chase Bank, N.A., which in turn, is 100% owned 
by JPMorgan Chase & Co. J.P. Morgan Securities Inc. and J.P. Morgan 
Chase Commercial Mortgage Securities Corp. are ``sister'' companies, 
with JPMorgan Chase & Co. as the common parent. JPMorgan Chase & Co. 
has confirmed to the Applicant that it has been notified of the 
application for the Proposed Amendment and has agreed to coverage under 
the Proposed Amendment.
    Wells Fargo represents that it has placed a notice on its Web pages 
for each of the Covered Transactions affected by the Acquisition and 
that this notice would be updated upon publication of the Proposed 
Amendment, and if granted, the final amendment. Further, the Web pages 
will note the appointment of any co-trustee and the appointment of the 
replacement trustee. The Applicant states that Wells Fargo, in its role 
of Trustee, will bear the cost of appointing such co-trustee and that 
there will be no financial impact on any Underwriter.
    5. Wells Fargo represents that the Covered Transactions affected by 
the Acquisition consist of 39 commercial mortgage-backed 
securitizations (CMBS) (Securitizations) as detailed at section III.KK. 
or Section III.LL. of PTE 2002-19 of the Proposed Amendment (the 
Securitization List). Wells Fargo states that 38 of the Securitizations 
were structured and are managed to meet the requirements of PTE 96-22 
and Series 2002-C1 was structured and managed to meet the requirements 
of PTE 2002-19,

[[Page 44389]]

in each case as amended by PTE 2007-05. Wells Fargo is the Trustee in 
each of the Securitizations. The Applicant represents that, in its role 
as Trustee, Wells Fargo is obligated under both the operative documents 
that securitize the loans, and under state law relating to fiduciaries, 
to protect the interests of security holders. Specifically, the Trustee 
is required to enforce the rights of security holders against other 
parties to the transaction, including Servicers, Swap Counterparties 
and loan sellers. The Applicant notes further that in practice, due to 
industry standards and reputation concerns by the various parties, 
little such protection or enforcement is necessary, and the Trustee's 
role, while vigilant, is relatively passive. Wachovia is a party to 
each of the Securitizations in the capacity or capacities detailed in 
the Securitizations List. The Applicant states that, in any of these 
capacities, Wachovia is obligated, under the operative documents of the 
transaction, to perform its designated duties under contractual and, in 
some cases, industry standards for the benefit of security holders. The 
Applicant represents that each of the Pooling and Servicing Agreements 
has been structured to comply with PTE 96-22 or in the case of Series 
2002-C1, PTE 2002-19, and that each of the Trusts has been managed in 
accordance with the related Pooling and Servicing Agreement. 
Consequently, Securities issued by each Trust currently are eligible 
for purchase by Plans that meet the requirements of PTE 96-22 or in the 
case of Series 2002-C1, PTE 2002-19.
    6. The Applicant states that none of the Trusts were formed or 
marketed with the knowledge that Wells Fargo and Wachovia would become 
affiliated. In this regard, the Applicant notes that there are no 
securitizations on the Securitization List that closed later than 2007; 
the Acquisition was announced in the third quarter of 2008. The 
Applicant states that, in general, the Pooling and Servicing Agreements 
governing the applicable Securitizations permit the cures detailed in 
their Application by contemplating a Trustee's resignation and 
replacement so as to comply with applicable law and providing the 
Trustee the ability to appoint co-trustees and other agents authorized 
to carry out the Trustees' duties. The Applicant notes that the 
agreements do not provide specific qualifications for co-trustees. 
While the agreements vary in the detail, after due diligence, the 
Applicant asserts that it is not aware of any provisions of the 
agreements or SEC requirements that preclude the cures detailed in the 
Application.
    7. Wells Fargo represented in its Application that, during the 
proposed six month resolution period, for each Securitization on the 
Securitization List, the Trustee shall appoint a co-trustee, which is 
not an Affiliate of Wells Fargo, no later than the earlier of (a) March 
31, 2009 or (b) five business days after Wells Fargo, the Trustee, has 
become aware of a conflict between the Trustee and any member of the 
Restricted Group that is an Affiliate of the Trustee. The co-trustee 
would be solely responsible for resolving such 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 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 
since a replacement trustee would be in place by March 31, 2009. Wells 
Fargo represented that as Trustee, Wells Fargo would appoint a co-
trustee with the knowledge and skill necessary to resolve any conflict 
arising between Wells Fargo and any Wells Fargo affiliated member of 
the Restricted Group. In the event that a co-trustee were appointed, 
such co-trustee would assume Wells Fargo's role under the related 
Pooling and Servicing Agreement (solely with respect to any conflict 
between Wells Fargo and a Wells Fargo affiliate that is a member of the 
Restricted Group) until a replacement trustee replaced Wells Fargo.
    For purposes of this Proposed Amendment, a conflict would arise 
whenever (a) Wachovia is a member of the Restricted Group and fails to 
perform in accordance with the timeframes contained in the relevant 
Pooling and Servicing Agreement following a request for performance 
from Wells Fargo, as Trustee, or (b) Wells Fargo, 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.
    Additionally, for purposes of this Proposed Amendment, 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's request, as Trustee, for 
performance; (2) Wachovia, as Sponsor, notifies Wells Fargo, as 
Trustee, that it will not repurchase a loan for breach of 
representation, following Wells Fargo'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 LIBOR \5\ that Wells Fargo, as Trustee, considers erroneous.
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    \5\ The London Interbank Offered Rate.
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    8. The Applicant stated that it intended to complete the 
negotiations and paperwork on an ongoing basis, with the effective date 
for all changes to be March 31, 2009. The Applicant noted that in 
contrast to co-trustees, any replacement trustee would have to meet the 
requirements of the related Trust agreement for qualification as a 
Trustee (i.e., would meet the same requirements that Wells Fargo had to 
meet). A copy of a typical Pooling and Servicing Agreement requirements 
for a Trustee was provided to the Department. The Applicant further 
noted that if a conflict were to arise prior to March 31, 2009, with 
respect to any Trust, the most likely course would be that Wells Fargo 
would promptly resign as Trustee and the replacement trustee would 
assume its role earlier than scheduled. The next most likely scenario 
is that the party that would become the replacement trustee (and hence 
meets the requirements of the related Pooling and Servicing Agreement 
for qualification as a Trustee) would be appointed co-trustee under the 
terms of the Proposed Amendment. The Applicant stated, however, there 
might be situations where either such course of action would be 
impossible or impractical, in which case the parties would have to 
appoint a different co-trustee until the replacement trustee assumed 
its role.
    The Applicant stated that in certain cases, Wells Fargo would 
continue as a securities administrator, retaining certain reporting 
requirements but be responsible to the replacement trustee. The 
replacement trustee would have legal title to the assets of the trust, 
would have fiduciary responsibility to the securities holders and would 
be responsible for supervising Wells Fargo in whatever role it retains. 
Wells Fargo stated that it would notify the Department of Labor of any 
conflict that arose prior to the replacement of Wells

[[Page 44390]]

Fargo as Trustee in any of the Covered Transactions. The Applicant 
noted that, as a technical matter, in the most likely case (e.g. the 
assertion of a breach of representation or warranty by the Sponsor), 
the Pooling and Servicing Agreements all require that the Trustee 
provide the offending party 90 days to cure the issue before the 
Trustee may take any action to do so itself. Consequently, if an issue 
arose after December 31, 2009, the Trustee would not have been able to 
take any action to cure the issue until after March 31, 2009. The 
Applicant asserts that since it was expected that the Trustee 
replacements would be made by March 31, 2009, it was not anticipated 
that a conflict would arise while Wells Fargo was the Trustee of any of 
the Covered Transactions.
    9. On June 3, 2009, the Applicant informed the Department that 
Wells Fargo is resigning as Trustee from a total of 115 transactions 
(this number includes transactions where the conflict is not ERISA-
related and the transaction is not on the Securitization List). Wells 
Fargo resigned from 15 of these transactions on December 31, 2008, 
resigned from 41 of these transactions by March 31, 2009, and will 
resign from the remaining 59 no later than June 30, 2009. Of the 15 
transactions Wells Fargo resigned from on December 31, 2008, it 
resigned from 7 solely for ERISA purposes and 8 solely for securities 
law purposes. As of March 31, 2009, 56 transactions had received 
replacement trustees. The Applicant represented that the replacement 
trustees for the remaining transactions were currently being 
negotiated. On May 7, 2009, the Applicant informed the Department that 
for all 39 of the Covered Transactions on the Securitization List, the 
replacement trustees were in place as of March 31, 2009. Bank of 
America, N.A. will be the replacement trustee for 23 of the Covered 
Transactions and U.S. Bank National Association will be the replacement 
trustee for the remaining 16 Covered Transactions. The Applicant has 
further indicated that there were no actual conflicts from the date 
that the affiliation arose, December 31, 2009, through March 31, 2009. 
Thus, no co-trustee had to be appointed during that period. The 
Applicant noted that in cases where the Trustee is also the securities 
administrator, Wells Fargo will resign as Trustee and remain securities 
administrator.
    10. The Applicant represents that in the financial services 
industry, large commercial mortgage loans may be securitized by 
splitting such loans into two or more pari passu portions and including 
each portion in a different securitization (Split Loan Transaction). 
This is a risk management technique that prevents the loan from 
representing too large a portion of a single securitization. From the 
borrower's perspective, the loan remains a single debt instrument and, 
consequently, the loan is serviced as such.
    Servicing of the loan is the responsibility of the parties to the 
first securitization to close, with the other lenders (whether or not 
such lenders are themselves securitization vehicles) agreeing to a 
passive role. This arrangement is memorialized in an intercreditor 
agreement,\6\ which describes the rights and responsibilities of the 
parties to such agreement (Intercreditor Agreement). In many cases, the 
securitizations to which the other notes are to be contributed have not 
been determined as of the date of the Intercreditor Agreement.
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    \6\ The Applicant has provided the Department with a redacted 
intercreditor agreement, each of two public offering documents and 
each of two pooling and servicing agreements used in a typical loan 
splitting transaction. Because the two notes comprising the loan 
subject to this intercreditor agreement were securitized in publicly 
offered securitization transactions, the offering documents and 
pooling and servicing agreements for such securitizations were filed 
with the SEC and are public documents. The Applicant notes that the 
intercreditor agreement itself is not a public document (although 
the material features of the intercreditor agreement are described 
in the offering documents for the two securitizations).
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    In a commercial mortgage securitization transaction, the Servicer 
is the entity that carries out the day-to-day collection and 
enforcement of the receivables which back the securities issued in a 
transaction. The two primary types of Servicers are the Master 
Servicer, which is generally the lead servicer for the transaction for 
performing assets, and the ``Special Servicer'', which is generally 
appointed to service non-performing assets such as defaulted loans and 
real estate owned (REO) properties.\7\ The Applicant notes that the 
term ``Primary Servicer'' is synonymous with Subservicer, and refers to 
the servicer who is actually responsible for collection of the mortgage 
payments with respect to a property. The Primary Servicer is 
responsible to the Master Servicer for the transaction; the details of 
the relationship are described in a servicing agreement between the 
Primary Servicer and the Master Servicer.
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    \7\ The Applicant defines REO property as real property that has 
been acquired by a securitization trust via foreclosure or by deed 
in lieu of foreclosure. Tax law requires that such REO property be 
disposed of by the trust within a specified time period and imposes 
restrictions on income that can be earned with respect to the 
property.
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    The Applicant states that the trigger for transferring the 
servicing from the Master Servicer to the Special Servicer is a 
``Servicing Transfer Event'' (which generally include the uncured 
failure (or expected failure) of the mortgagor to make payments when 
due; non-monetary defaults that would materially impair the value of 
the mortgaged property as security for the loan; bankruptcy, insolvency 
or similar proceeding by the mortgagor; admission by the mortgagor of 
its inability to pay its debts; and commencement of foreclosure or 
similar proceedings with respect to the related mortgaged property).\8\ 
Although the first and foremost difference between a Special Servicer 
and a Master Servicer is in terms of the assets each one services 
(i.e., the Master Servicer with respect to performing assets and the 
Special Servicer with respect to non-performing assets), the Special 
Servicer is also involved in the servicing of performing assets with 
respect to certain ``Special Actions'' discussed below.
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    \8\ The pooling and servicing agreement provides the definition 
of a ``Servicing Transfer Event'' and related definitions from the 
pooling agreement.
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    Upon the occurrence of a Servicing Transfer Event with respect to 
an asset, the Master Servicer transfers the servicing files for such 
asset to the Special Servicer and the Special Servicer takes over the 
primary servicing for such asset (including, but not limited to, 
collection of payments from the mortgagor, maintenance of insurance, 
enforcement of alienation clauses, inspections, reports and record 
keeping) from the Master Servicer. In addition, due to the nature of 
non-performing assets, the Special Servicer's primary task is to 
resolve the asset, i.e., either to return the loan to performing status 
by negotiating a workout with the mortgagor or to realize value from 
such non-performing asset by undertaking court action and enforcement 
procedures including, but not limited to, liquidation of the asset 
through foreclosure and sale of the asset or conversion of the asset 
into an REO property.
    Due to the nature of non-performing assets, the Special Servicer 
also has additional servicing responsibilities with respect to such 
non-performing assets such as the production of asset status reports 
and approval of modifications, waivers, amendments and consents with 
respect to non-performing assets. While the Special Servicer is 
generally engaged to service the non-performing assets, in certain 
instances set forth in the securitization documents, the Special 
Servicer also

[[Page 44391]]

has the right to consult with and sometimes to direct the Master 
Servicer to take or refrain from taking certain actions with respect to 
all assets (whether performing or non-performing) ordinarily referred 
to as ``Special Actions''. Typical examples of Special Actions include 
(1) Proposed or actual foreclosure upon an asset, (2) material 
modifications or waivers of assets, (3) proposed sales of assets, (4) 
the determination to bring a REO Property into compliance with 
applicable environmental laws or to otherwise address hazardous 
materials thereon, (5) acceptance of substitute or additional 
collateral (where there is lender discretion), (6) the waiver of a 
``due-on-sale'' clause or ``due-on-encumbrance'' clause, (7) assumption 
agreements that would release a borrower from liability, (8) the 
acceptance of a discounted payoff of an asset, (9) the release of 
earnout reserve funds \9\ or letters of credit (where there is lender 
discretion), (10) approval of a material lease (where there is lender 
discretion), (11) any change in property manager or franchise (where 
there is lender discretion) and (12) with respect to certain loans, 
approval of defeasance (including confirmation that conditions to a 
permitted defeasance have been met). In servicing the non-performing 
assets or with respect to Special Actions, the Special Servicer is 
typically required to consult with and follow the directions of the 
Directing Holder, as defined below, unless doing so would violate the 
servicing standard under the securitization documents.
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    \9\ The Applicant defines ``earnout reserve funds'' as amounts 
held back from a commercial borrower by the lender at the time of 
closing of the loan which may, upon satisfaction of conditions set 
forth in the loan documents and via the procedures set forth in the 
related pooling and servicing agreement, be released to the borrower 
for other purposes as set forth in the loan documents. If the 
conditions are not met, the earnout reserve fund is applied to 
reduce the outstanding principal balance of the loan.
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    The Special Servicer is typically appointed by, and can be 
terminated and replaced by, the ``Directing Holder'' (sometimes 
referred to as the ``Controlling Class'') for the securitization. This 
is generally the owner of the most subordinate portion of such 
securitization.\10\ In addition, the Special Servicer (including a 
replacement Special Servicer) must meet the qualification requirements 
for a Special Servicer (e.g., required ratings by the ratings agencies) 
and must not trigger a Special Servicer event of default under the 
securitization documents to serve as Special Servicer.
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    \10\ In the case of a loan split among more than a single 
transaction, special rules apply. Typically, the Directing Holder is 
the most subordinate class of each securitization whose assets 
include a portion of such loan, with voting based on the percentage 
interest of the loan held by the securitization. Tie votes are 
broken by the decision of an advisor appointed by the holders. 
Additionally, the ``Controlling Class'' is the most junior class of 
a securitization; this class is responsible for appointing and 
terminating the Special Servicer and for making certain decisions 
with respect to defaulted loans. If there is more than one holder of 
an interest in the Controlling Class, it is possible for there to be 
disagreement among such holders. In this case, the majority would 
rule. The holders forming such majority are known as ``Directing 
Certificateholders'' or ``Directing Holders'' (the terms are 
interchangeable).
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    The Intercreditor Agreement is drafted in a manner that gives a 
great deal of, but not limitless, discretion to the Master Servicer and 
Special Servicer. Both the Master Servicer and the Special Servicer are 
obligated to act within the confines of the ``Servicing Standard,'' a 
somewhat amorphous set of guidelines--obviously not prescriptive but 
with boundaries commonly accepted by the lending industry. Further, 
certain major decisions with respect to the special servicing of 
troubled assets are subject to a vote by the Directing Holders, as 
described above.
    The purpose of the Intercreditor Agreement is twofold: first, to 
provide for the servicing of the various notes as a single loan, and 
second, to provide assurance that tax laws critical to securitizations 
will be observed. It is important to holders that the proper tax 
treatment of any securitizations is ensured. Violating the tax rules 
for securitizations can cause the securitization vehicle itself to 
become a taxable corporation, reducing returns to security holders, 
even tax-exempt holders, by the amount of the taxes due. The 
Intercreditor Agreement provides that a split loan will be serviced 
from the first transaction to close. Holders of the other notes 
comprising the loan, whether or not such notes are included in 
subsequent securitizations, agree to be bound by the pooling and 
servicing agreement for the first securitization with respect to the 
loan. The rights retained by the subsequent securitizations are 
exercisable by the Directing Certificateholders \11\ for each such 
subsequent securitization, not by the trustee per se. The material 
terms of the Intercreditor Agreement are spelled out in the disclosure 
for each of the securitizations, so that all investors understand prior 
to their investment in the securitization that decision making with 
respect to the note representing the split loan has been ceded to the 
lead securitization.
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    \11\ Because Directing Certificateholders are the most junior 
class, they are very unlikely (except in cases where securitization 
pools have suffered considerable losses) to include Plan investors. 
Moreover, because of the subordination structure of securitization 
pools, the interests of Directing Certificateholders are generally 
aligned to the interests of holders of more senior classes (i.e., 
because Directing Certificateholders suffer losses before more 
senior classes, any decision that reduces the likelihood of the most 
junior class suffering a loss will automatically reduce the 
likelihood of losses affecting more senior classes).
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    The Intercreditor Agreement provides that, if the contemplated 
servicing cannot be realized (e.g., because the first securitization is 
terminated), a substantially similar agreement will be reached. The 
Applicant states that, if other portions of the loan are in 
securitizations designed to comply with the Underwriter Exemptions, the 
trustee counsel, which is sensitive to the issues involved, would not 
permit any agreement that would cause the conditions of the Underwriter 
Exemptions to be violated. Either: (i) The subsequent agreement would 
provide for substantially the same limitation on trustee rights as was 
the case with the original Intercreditor Agreement; (ii) additional 
exemptive relief would be sought from the Department; or (iii) the 
trustee of the affected securitization would be replaced.
    The Applicant notes that in a split loan situation where the first 
securitization suffers considerable losses, since all of the notes 
making up the loan are pari passu, the first note would continue to be 
outstanding, even if it were no longer in a securitization; therefore, 
there would have to be a holder of that first note. The holder of the 
first note would continue to be responsible for any direction to be 
given to the Master Servicer and the Special Servicer of the first 
securitization (except for the times where directions would be given by 
the Directing Holder). Additionally, the servicing would have to be 
performed in a manner that did not jeopardize the pass-through tax 
status (normally, REMIC or grantor trust) of securitizations holding 
notes 2, 3, etc. These are the prime ``substantially similar'' 
features. The remote possibility exists that the first holder would 
refuse to put itself in the controlling position. In that case, control 
would go to one of the other securitizations. At this point, the 
Applicant states that control would not end up in a securitization 
where there was an affiliated trustee \12\ (and, as a last resort, the 
trustee would be replaced to ensure non-affiliation).
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    \12\ The Department notes that if this were to occur, the 
Underwriter Exemption would become unavailable to the transaction.

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[[Page 44392]]

    As illustrated above, the depositing of portions of one loan into 
multiple transactions increases the potential relationship issues. 
Though the loan continues to be serviced solely by the Primary, Master 
and Special servicers (the Split Loan Servicers) under the first 
transaction, and notwithstanding that each other transaction discloses 
the fact that such loan is serviced under, and pursuant to, the terms 
of the initial transaction, these Split Loan Servicers may fall within 
the definition of Servicer in the Underwriter Exemptions, making such 
parties members of the Restricted Group for such other transactions. As 
a result, the pool of available unaffiliated trustees for each other 
transaction is narrowed.
    The December 31, 2008 Acquisition of Wachovia by WFC (Acquisition) 
caused a certain fact pattern illustrated by the following example to 
emerge in these nine CMBS transactions (Split Loan Transactions List):
    1. Banc of America Commercial Mortgage Trust 2006-4.
    2. Banc of America Commercial Mortgage Trust 2007-2.
    3. Banc of America Commercial Mortgage Trust 2008-LS1.
    4. Citigroup Commercial Mortgage Trust 2008-C7.
    5. COMM 2004-LNB-2.
    6. COMM 2007-C9.
    7. J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-
CIBC16.
    8. LB-UBS Commercial Mortgage Trust 2004-C2.
    9. Morgan Stanley Capital I Trust 2005-HQ5.

    For example, a large commercial loan (Loan) is split among four 
transactions. Each securitization trust, S1, S2, S3 and S4, contains a 
pari passu portion of the Loan. Wachovia is the Primary Servicer of the 
Loan. Because S1 closes first, the entire Loan is serviced by Wachovia 
under the S1 securitization and the trustees of the four trusts sign an 
intercreditor agreement. An unaffiliated bank is Trustee of S1; 
Wachovia is Master Servicer of S1 and CW Capital is Special Servicer of 
S1. Pursuant to the Intercreditor Agreement, because Wachovia is Master 
Servicer of all the loans in S1, Wachovia is now the Master Servicer 
for the Loan in S1, S2, S3 and S4. As noted above, Wachovia is also the 
Primary Servicer.
    While S1, S2, S3 and S4 are all structured to comply with one or 
more of the Underwriter Exemptions, a problem may arise because Wells 
Fargo is the Trustee of S4. With the acquisition of Wachovia by Wells 
Fargo, Wells Fargo, in its role as Trustee of S4, is now affiliated 
with a member of the Restricted Group, i.e., Wachovia in its role as 
Primary Servicer and Master Servicer of the Loan. Wachovia has no other 
role in or connection with S4; in fact, all of its obligations arise 
only under the terms of S1 and the Intercreditor Agreement. The 
Applicant believes that the Underwriter Exemptions' conditions may 
require that Wells Fargo resign as Trustee of S4, despite the 
Applicant's belief that Wells Fargo has no control over Wachovia in its 
role as Master Servicer of the Loan (other than as a result of the 
already signed Intercreditor Agreement where it cedes control to the 
unaffiliated bank that is Trustee of S1).
    The Applicant notes that when this type of prohibited relationship 
is known before the transactions close, it is possible to appoint a co-
trustee with respect to similarly divided participations in a loan. In 
this case, however, with the transactions already closed, the Applicant 
asserts that appointing a co-trustee would likely require an amendment 
to the pooling and servicing agreement, which may require the consent 
of all the security holders (a situation made even more problematic 
with book-entry securities). Consequently, the Applicant believes that 
the appointment of a co-trustee is not feasible.
    The Applicant represents that the presence of an independent 
trustee in S1 (the unaffiliated bank), which is responsible for the 
actions of the Master Servicer, provides sufficient protection against 
any harm the prohibited relationship in S4 could cause. As an 
additional safeguard, if the Loan were ever to become delinquent, 
servicing would be transferred to the Special Servicer who is 
unaffiliated with Wells Fargo. Further, the Intercreditor Agreement was 
negotiated and signed prior to any indication that a prohibited 
relationship would exist in any of the trusts. Thus, the Applicant 
asserts, that the agreement could not have been drafted in a manner as 
to favor Wells Fargo or Wachovia at the expense of any Plan, or to 
otherwise circumvent the conditions of the Underwriter Exemption. 
Additionally, the Applicant believes that the presence of an 
independent trustee for the Loan and the lack of discretion on the part 
of Wells Fargo as Trustee of S4 is factually similar to the situation 
created with the appointment of a co-trustee. The Applicant believes 
that, if responsibility for the servicing of the Loan is confined to 
the servicer of one of the securitization vehicles, such servicer 
should not be considered a member of the Restricted Group within the 
meaning of the Underwriter Exemptions in the other securitizations 
where portions of the loan are collateral.
    The Applicant notes that Holders, including fiduciaries holding on 
behalf of Plans, could bring suit against any parties to the 
transaction or could collectively order the trustee to bring such suits 
on behalf of the securitization (with the threat of replacing the 
trustee for failure to comply). As a practical matter, all transaction 
agreements provide mechanisms for replacing parties, a less expensive 
and more certain means of stopping bad behavior. Nonetheless, such 
suits are possible and it is impossible to predict the outcome of any 
such suit. Moreover, legislative and regulatory actions in response to 
the current economic situation could make such suits far more probable 
or, in the alternative, could preempt them completely. The legislative 
and regulatory situation, both at the federal and the state and local 
level, is too much in flux to even predict how the landscape might look 
one, two or ten years in the future. This lack of predictability, 
though, is pervasive in the capital markets. There is no feature of the 
split loan structure that makes it any more susceptible to legal 
action, legislative or regulatory decisions, etc. The Applicant 
believes that splitting a large loan among several securitizations is 
best viewed as a matter of prudence. While allowing large loans to be 
made when appropriate underwriting considerations are taken into 
account, splitting the loan into multiple notes spreads the risk among 
several transactions and prevents too great a concentration in any one 
transaction.
    The Applicant has provided the Department with a detailed 
description of one particular intercreditor agreement (the Agreement) 
and a redacted copy of the Agreement, as well as the related provisions 
in the applicable pooling and servicing agreements (PSAs). The 
Applicant states that in the subsequent loan transactions that arise 
from the initial securitizations identified in the Split Loan 
Transactions List, the trustees have agreed (or, more accurately, have 
inherited an agreement made by its predecessor in interest) to a 
passive role with limited rights exercisable only under extreme 
circumstances and that the PSAs for these subsequent securitizations 
confirm this passivity. Thus, the Applicant asserts that the 
obligations detailed in the PSAs are ministerial, not discretionary. 
The Applicant states that the PSAs are explicit that the loan is not 
serviced or administered from the subsequent securitizations and that 
the parties to these securitizations are not obligated or authorized to 
supervise the

[[Page 44393]]

administration and servicing of the loan in the initial securitization.
    The Applicant represents further that a split loan is serviced in 
the first transaction to close and the Intercreditor Agreement governs 
the servicing of the split loan under the first transaction (and limits 
the rights and responsibilities of other holders of pieces of the 
loan). The terms of the PSA for any subsequent transaction containing a 
piece of the split loan specify that the master servicer, the special 
servicer and the trustee of such subsequent transaction ``shall have no 
obligation or authority'' to service the loan or to direct the 
servicing of the split loan or, subject to extremely limited 
exceptions, to make advances with respect to the split loan. The only 
responsibilities left for the trustee of a subsequent transaction are: 
(i) To keep photocopies of the ``Mortgage File''; \13\ (ii) to release 
said Mortgage File upon payment in full of the loan; and (iii) to make 
advances with respect to the loan to the extent that the advance would 
be recoverable and such advance has not been made by the Master 
Servicer of the first transaction or the Master Servicer of the second 
transaction.
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    \13\ The Mortgage File is defined in the PSA to include, among 
other documents, the original executed mortgage note and the 
original or in some cases, a copy of: The mortgage and any 
assignment and recordation; assignment of all unrecorded documents 
related to the mortgage loan; any modification, consolidation, 
assumption and substitution agreements; the policy or certificate of 
lender's title insurance or irrevocable binding commitment; filings 
of relevant UCC Financial Statements; any ground lease and related 
documents; any relevant intercreditor agreement, loan agreement, 
letter of credit, management and franchise agreements; and any 
documents related to any companion loan.
---------------------------------------------------------------------------

    The Applicant states that the first two responsibilities, keeping a 
photocopy of the Mortgage File and releasing it, are completely 
ministerial and involve no discretion. The third responsibility is also 
non-discretionary. The Master Servicer of the first transaction (MS1) 
is obligated under the PSA for the first transaction to either make the 
advance or certify that it would be nonrecoverable. If MS1 neither 
makes the advance nor certifies as to nonrecoverability, the same 
obligation falls on the Master Servicer of the related subsequent 
transaction (MS2). MS2 only has the obligation with respect to the 
piece of the loan in its transaction. If MS2 also neither advances nor 
certifies, the trustee of the second transaction either (i) must make 
the advance with respect to the piece of the loan in its transaction 
(with no authority under certain PSAs to pass judgment on non-
recoverability) or (ii) must make either the advance with respect to 
the piece of the loan in its transaction or the certification of non-
recoverability (under the terms of other PSAs--there is some variance 
among pooling and servicing agreements between approach (i) and 
approach (ii)). Even in case (ii), the process is not discretionary. 
While there is admittedly some leeway (that could be interpreted as 
discretion) in valuing the loan, it is in the trustee's economic 
interest to make an accurate determination. If the trustee places too 
high a value on the asset, it risks not being repaid the advance (and 
note that it is an advance, so there is the expectation of repayment). 
Too low a value, and the trustee risks action by securityholders that 
would have benefited from the advance (such holders eventually get 
their money, but lose the time value). If the trustee is bound by a PSA 
that permits a certification in lieu of the advance, such certification 
requires an explanation of the basis for the determination and such 
explanation requires an objective determination that would satisfy 
securityholders. The objectivity of the process indicates that 
discretion plays, at most, a minimal role.
    The Applicant concludes that consequently, it should not matter 
that the trustee for the subsequent securitization is related to the 
Master Servicer or Special Servicer for the initial securitization; 
provided that any such party is not otherwise a member of the 
Restricted Group with respect to the subsequent securitization. More 
generally, because the relevant features of the Agreement are 
substantially similar to those found in all intercreditor agreements 
used in the market, the Applicant requests that the Department 
determine that if the only potentially prohibited affiliation is 
between a trustee and a servicer of a loan serviced in another 
securitization under the eye of an independent trustee, the trustee of 
the subsequent securitization should not be disqualified in the case of 
an affiliation arising as a result of a merger between the trustee and 
servicer that occurs subsequent to the securitization solely because of 
such affiliation.
    Based on the representations and documents that the Applicant has 
provided to the Department, the Department is of the view that, if the 
affiliation between the Master Servicer of the first Securitization and 
a trustee of a loan serviced in a subsequent securitization is solely 
as a consequence of the acquisition of Wachovia by Wells Fargo, the 
Master Servicer of the first securitization would not be considered a 
member of the Restricted Group of a trustee of the subsequent 
securitizations in each Split Loan Transaction for the nine 
transactions identified in the Split Loan Transaction List, that are 
otherwise eligible for relief under the Underwriter Exemptions.
    11. The Applicant notes that Plans acquired Securities issued under 
the Securitizations in reliance on the exemptive relief provided by the 
Underwriter Exemptions. Absent additional relief, the Acquisition has 
caused these granted exemptions to cease to apply to several of the 
Securitizations. Wells Fargo represents that the Securities issued in 
transactions such as the Securitizations are attractive investments for 
Plans subject to Title I of ERISA or section 4975 of the Code and 
conversely, such plans are an important market for issuers of such 
Securities. Wells Fargo asserts that to force Wells Fargo to resign as 
Trustee in all of the Securitizations before the Acquisition was not 
administratively feasible because the number of available trustees is 
limited and there is work required in changing trustees. Similarly, to 
have the exemptions no longer apply to the Securitizations would force 
the Plans to sell their securities in the current unstable market, 
likely at a loss. The Applicant additionally notes that although the 
Acquisition has been widely covered, it is conceivable that Plan 
fiduciaries would not realize that the Underwriter Exemption relied 
upon by the Plans had ceased to apply, raising the possibility that a 
Plan would not sell and that non-exempt prohibited transactions would 
occur.
    12. Wells Fargo states that the Plans purchased Securities in 
reliance on PTE 96-22 or PTE 2002-19. At that time, the Plans had no 
knowledge that the Trustee would become an Affiliate of one or more 
members of the Restricted Group. On or after the Acquisition, except in 
cases covered by PTE 96-22 as amended by PTE 2000-58 (providing a six-
month window for Trustee-Servicer affiliations) or PTE 2002-41 
(Trustee-Underwriter affiliations), the purchased Securities would no 
longer be afforded coverage under the Underwriter Exemptions and the 
Plans would have been obligated to sell the Securities prior to 
December 31, 2008. The Applicant asserts that this is problematic for 
several reasons. First, as is customary for such transactions, the 
physical securities are not used in most cases. Rather, an electronic 
system, usually the Depository Trust Company's electronic system, is 
utilized and the securities are in global form. In such cases, it is 
difficult (and may be impossible) to ascertain the beneficial ownership 
of the securities, meaning

[[Page 44394]]

that it is not known whether Plans are owners and to what extent. The 
Applicant claims that identifying the affected Plans would be time 
consuming and expensive, and may be impossible to do with complete 
accuracy because of the book-entry system under which Securities were 
issued. As stated above, the Applicant represents that notice of this 
request for relief was posted on the Trustee's Web site at the time 
this Application was submitted, which would be updated to reflect any 
action of the Department with respect to the Application. The Applicant 
has informed the Department that, as noted above, although Wells Fargo 
has been replaced as Trustee by March 31, 2009, Wells Fargo will remain 
as the securities administrator for any of the Securitizations on the 
Securitization List for which it was providing such services. Further, 
the Applicant has indicated that either Wells Fargo (in cases where 
Wells Fargo continues as securities administrator) or the replacement 
trustee (in all other cases) will continue to update its Web site 
concerning the status of the Proposed Amendment. In this regard, the 
Applicant also requests that the publication of the Proposed Amendment 
in the Federal Register serve as the Notice to Interested Persons for 
purposes of this submission.
    Second, and more importantly, The Applicant notes that the current 
disruption in the mortgage-backed securities market makes sales 
problematic, both in terms of finding buyers and establishing proper 
valuation. Granting the requested relief prevents these problems. The 
Applicant states further that the relief is of the same duration, six 
months, as that already provided by the Department for Trustee-Servicer 
affiliations, suggesting that the Department has already determined 
that this period is sufficiently brief to prevent serious conflicts of 
interest from arising.
    13. Wells Fargo requests that the relief, if granted, be made 
retroactive to December 31, 2008, the Acquisition Date. If the relief 
is granted retroactively, Plans would be able to retain their prior 
Securitization investments and to purchase Securities in the secondary 
market relying upon the Underwriter Exemptions once exemptive relief is 
granted, even if the transactions originally closed or will close prior 
to the date the final Amendment is published in the Federal Register, 
if granted by the Department.

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 section 4975(c)(2) of the Code does not 
relieve a fiduciary or other party in interest or disqualified person 
from certain other provisions of the Act and the Code, including any 
prohibited transaction provisions to which the exemption does not apply 
and the general fiduciary responsibility provisions of section 404 of 
the Act, which require, among other things, a fiduciary to discharge 
his or her 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 
requirements of section 401(a) of the Code that the plan operate for 
the exclusive benefit of the employees of the employer maintaining the 
plan and their beneficiaries;
    2. Before an exemption can be granted under section 408(a) of the 
Act and section 4975(c)(2) of the Code, the Department must find that 
the exemption is administratively feasible, in the interest of the 
plans and of their participants and beneficiaries and protective of the 
rights of participants and beneficiaries of the plans; and
    3. The proposed amendment, if granted, will be supplemental to, and 
not in derogation of, any other provisions of the Act and/or the Code, 
including statutory or administrative exemptions and transitional 
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.

Written Comments and Hearing Requests

    All interested persons are invited to submit written comments or 
requests for a hearing on the pending amendment to the address above, 
within the time frame set forth above, after the publication of this 
proposed amendment in the Federal Register. All comments will be made a 
part of the record. Comments received will be available for public 
inspection with the Application at the address set forth above.

Proposed Exemption

    Based on the facts and representations set forth in the 
application, under the authority of section 408(a) of the Act and 
section 4975(c)(2) of the Code and in accordance with the procedures 
set forth in 29 CFR Part 2570, Subpart B (55 FR 32836, August 10, 
1990), the Department proposes to modify 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, (PTE 2002-19).
    1. Subsection II.A.(4) of PTE 96-22 is amended to add a new 
subsection (c) and subsection II.A.(4) of PTE 2002-19 is amended to add 
a new subsection (d) that read as follows:

    (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, 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.
    (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 Restricte