Prohibited Transaction Exemptions and Grant of Individual Exemptions Involving: PTE 2009-29, Iron Workers Local 17 Pension Fun (the Plan), D-11432, et al., 59001-59012 [E9-27405]

Agencies

• Employee Benefits Security Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 74, Number 219 (Monday, November 16, 2009)]
[Notices]
[Pages 59001-59012]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-27405]


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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 m