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telephone (202) 693–8668. Oral amendment to PTE 96–22 and PTE certificates representing undivided presentations will be limited to ten 2002–19, if granted, would provide a interests in those investment trusts. minutes, time permitting, but an six-month period to resolve certain All of the Underwriter Exemptions extended statement may be submitted affiliations, as a result of the Wells were amended by PTE 97–34, 62 FR for the record. Individuals with Fargo & Company (WFC) acquisition of 39021 (July 21, 1997), PTE 2000–58, 65 disabilities who need special , between Bank, FR 67765 (November 13, 2000), and PTE accommodations should contact Larry N.A. (Wells Fargo) the Trustee, and 2007–05, 72 FR 13130 (March 20, 2007), Good by September 8 at the address Wachovia as members of the Restricted as corrected at 72 FR 16385 (April 4, indicated. Group, as those terms are defined in the 2007). Certain of the Underwriter Signed at Washington, DC this 24th day of Underwriter Exemptions (the Proposed Exemptions were amended by PTE August 2009. Amendment). The Proposed 2002–41, 67 FR 54487 (August 22, 2002) Phyllis C. Borzi, Amendment, if granted, would affect the or modified by PTE 2002–19. The Department is proposing this Assistant Secretary, Employee Benefits participants and beneficiaries of the Security Administration. Plans participating in such transactions amendment to PTE 96–22 and PTE 2002–19 pursuant to section 408(a) of [FR Doc. E9–20794 Filed 8–27–09; 8:45 am] and the fiduciaries with respect to such Plans. the Act and section 4975(c)(2) of the BILLING CODE 4510–29–P DATE: Written comments and requests Code, and in accordance with the for a hearing should be received by the procedures set forth in 29 CFR Part Department by September 28, 2009. 2570, Subpart B (55 FR 32836, 32847, DEPARTMENT OF LABOR 2 ADDRESSES: All written comments and August 10, 1990). 1. The Underwriter Exemptions Employee Benefits Security requests for a public hearing (preferably, permit Plans to invest in pass-through Administration three copies) should be sent to the securities representing undivided Office of Exemption Determinations, interests in asset-backed or mortgage- Notice of a Proposed Amendment to Employee Benefits Security backed investment pools (Securities). Prohibited Transaction Exemption Administration, Room N–5700, U.S. The Securities generally take the form of (PTE) 96–22, 61 FR 14828 (April 3, Department of Labor, 200 Constitution certificates issued by a trust (Trust). The 1996), as Amended by PTE 97–34, 62 Avenue, NW., Washington, DC 20210, Underwriter Exemptions permit FR 39021 (July 21, 1997), PTE 2000–58, (Attention: Exemption Application transactions involving a Trust, 65 FR 67765 (November 13, 2000), PTE Number D–11530). Interested persons including the servicing, management 2002–41, 67 FR 54487 (August 22, are invited to submit comments and/or and operation of the Trust, and the sale, 2002) and PTE 2007–05, 72 FR 13130 hearing requests to the Department by exchange or transfer of Securities (March 20, 2007) as Corrected at 72 FR the end of the scheduled comment evidencing interests therein, in the 16385 (April 4, 2007) (PTE 2007–05), period either by facsimile to (202) 219– initial issuance of the Securities or in (PTE 96–22), Involving the Wachovia 0204 or by electronic mail to the secondary market for such Securities Corporation and Its Affiliates [email protected]. The application (Wachovia), the Successor of First (the Covered Transactions). The most pertaining to the Proposed Amendment Union Corporation and PTE 2002–19, recent amendment to the Underwriter (Application) and the comments 67 FR 14979 (March 28, 2002), as Exemptions is PTE 2007–05, 72 FR received will be available for public Amended by PTE 2007–05 (PTE 2002– 13130 (March 20, 2007), as corrected at inspection in the Public Disclosure 19), Involving J.P. Morgan Chase & 72 FR 16385 (April 4, 2007) (PTE 2007– Room of the Employee Benefits Security Company and Its Affiliates (D–11530) 05). One of the General Conditions of Administration, U.S. Department of the Underwriter Exemptions, as AGENCY: Employee Benefits Security Labor, Room N–1513, 200 Constitution amended, requires that the Trustee not Administration, Department of Labor. Avenue, NW., Washington, DC 20210. be an ‘‘Affiliate’’ of any member of the ACTION: Notice of a Proposed FOR FURTHER INFORMATION CONTACT: ‘‘Restricted Group’’ other than an Amendment to PTE 96–22 and PTE Wendy M. McColough of the ‘‘Underwriter.’’ PTE 2007–05, 2002–19. Department, telephone (202) 693–8540. subsection II.A.(4). The term ‘‘Restricted (This is not a toll-free number.) Group’’ is defined under section III.M. SUMMARY: This document contains a SUPPLEMENTARY INFORMATION: This notice of pendency before the as: (1) Each Underwriter; (2) Each document contains a notice of pendency Department of Labor (the Department) of Insurer; (3) The Sponsor; (4) The before the Department of a proposed a proposed amendment to PTE 96–22 Trustee; (5) Each Servicer; (6) Any exemption to amend PTE 96–22 and and PTE 2002–19, Underwriter Obligor with respect to obligations or PTE 2002–19, Underwriter Exemptions. Exemptions.1 The Underwriter receivables included in the Issuer The Underwriter Exemptions are a Exemptions are individual exemptions constituting more than 5 percent of the group of individual exemptions granted that provide relief for the origination aggregate unamortized principal balance by the Department that provide and operation of certain asset pool of the assets in the Issuer, determined substantially identical relief from investment trusts and the acquisition, on the date of the initial issuance of holding and disposition by employee certain of the restrictions of sections 406 Securities by the Issuer; (7) Each benefit plans (Plans) of certain asset- and 407 of the Employee Retirement counterparty in an Eligible Swap backed pass-through certificates Income Security Act of 1974 (ERISA or Agreement; or (8) Any Affiliate of a representing undivided interests in the Act) and from the taxes imposed by person described in subsections those investment trusts. The proposed sections 4975(a) and (b) of the Internal III.M.(1)–(7).’’ The term ‘‘Servicer’’ is Revenue Code of 1986, as amended defined to include ‘‘the Master Servicer 1 The ‘‘Underwriter Exemptions’’ are a group of (Code), by reason of certain provisions and any Subservicer.’’ PTE 2007–05, individual exemptions that provide substantially of section 4975(c)(1) of the Code for the identical relief for the operation of certain asset- operation of certain asset pool 2 Section 102 of Reorganization Plan No. 4 of backed or mortgage-backed investment pools and investment trusts and the acquisition, 1978 (5 U.S.C. App. 1 [1996]) generally transferred the acquisition and holding by Plans of certain the authority of the Secretary of the Treasury to securities representing interests in those investment holding, and disposition by Plans of issue exemptions under section 4975(c)(2) of the pools. certain asset-backed pass-through Code to the Secretary of Labor.

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

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in each case as amended by PTE 2007– requirements that preclude the cures of representation within the time period 05. Wells Fargo is the Trustee in each detailed in the Application. prescribed in the relevant Pooling and of the Securitizations. The Applicant 7. Wells Fargo represented in its Servicing Agreement, following Wells represents that, in its role as Trustee, Application that, during the proposed Fargo’s request, as Trustee, for Wells Fargo is obligated under both the six month resolution period, for each performance; (2) Wachovia, as Sponsor, operative documents that securitize the Securitization on the Securitization List, notifies Wells Fargo, as Trustee, that it loans, and under state law relating to the Trustee shall appoint a co-trustee, will not repurchase a loan for breach of fiduciaries, to protect the interests of which is not an Affiliate of Wells Fargo, representation, following Wells Fargo’s security holders. Specifically, the no later than the earlier of (a) March 31, request that Wachovia repurchase such Trustee is required to enforce the rights 2009 or (b) five business days after loan within the time period prescribed of security holders against other parties Wells Fargo, the Trustee, has become in the relevant Pooling and Servicing to the transaction, including Servicers, aware of a conflict between the Trustee Agreement (the notification occurs prior Swap Counterparties and loan sellers. and any member of the Restricted Group to the expiration of the prescribed time that is an Affiliate of the Trustee. The The Applicant notes further that in period for the repurchase); and (3) co-trustee would be solely responsible practice, due to industry standards and Wachovia, as Swap Counterparty, makes for resolving such conflict between the or requests a payment based on a value reputation concerns by the various Trustee and any member of the of LIBOR 5 that Wells Fargo, as Trustee, parties, little such protection or Restricted Group that has become an considers erroneous. enforcement is necessary, and the Affiliate of the Trustee as a result of the 8. The Applicant stated that it Trustee’s role, while vigilant, is Acquisition; provided that if the Trustee intended to complete the negotiations relatively passive. Wachovia is a party has resigned on or prior to March 31, and paperwork on an ongoing basis, to each of the Securitizations in the 2009, and no event described in clause with the effective date for all changes to capacity or capacities detailed in the (b) has occurred, no co-trustee shall be be March 31, 2009. The Applicant noted Securitizations List. The Applicant required since a replacement trustee that in contrast to co-trustees, any states that, in any of these capacities, would be in place by March 31, 2009. replacement trustee would have to meet Wachovia is obligated, under the Wells Fargo represented that as Trustee, the requirements of the related Trust operative documents of the transaction, Wells Fargo would appoint a co-trustee agreement for qualification as a Trustee to perform its designated duties under with the knowledge and skill necessary (i.e., would meet the same requirements contractual and, in some cases, industry to resolve any conflict arising between that Wells Fargo had to meet). A copy standards for the benefit of security Wells Fargo and any Wells Fargo of a typical Pooling and Servicing holders. The Applicant represents that affiliated member of the Restricted Agreement requirements for a Trustee each of the Pooling and Servicing Group. In the event that a co-trustee was provided to the Department. The Agreements has been structured to were appointed, such co-trustee would Applicant further noted that if a conflict comply with PTE 96–22 or in the case assume Wells Fargo’s role under the were to arise prior to March 31, 2009, of Series 2002–C1, PTE 2002–19, and related Pooling and Servicing with respect to any Trust, the most that each of the Trusts has been Agreement (solely with respect to any likely course would be that Wells Fargo managed in accordance with the related conflict between Wells Fargo and a would promptly resign as Trustee and Pooling and Servicing Agreement. Wells Fargo affiliate that is a member of the replacement trustee would assume Consequently, Securities issued by each the Restricted Group) until a its role earlier than scheduled. The next Trust currently are eligible for purchase replacement trustee replaced Wells most likely scenario is that the party by Plans that meet the requirements of Fargo. that would become the replacement PTE 96–22 or in the case of Series 2002– For purposes of this Proposed trustee (and hence meets the C1, PTE 2002–19. Amendment, a conflict would arise requirements of the related Pooling and whenever (a) Wachovia is a member of Servicing Agreement for qualification as 6. The Applicant states that none of the Restricted Group and fails to a Trustee) would be appointed co- the Trusts were formed or marketed perform in accordance with the trustee under the terms of the Proposed with the knowledge that Wells Fargo timeframes contained in the relevant Amendment. The Applicant stated, and Wachovia would become affiliated. Pooling and Servicing Agreement however, there might be situations In this regard, the Applicant notes that following a request for performance where either such course of action there are no securitizations on the from Wells Fargo, as Trustee, or (b) would be impossible or impractical, in Securitization List that closed later than Wells Fargo, as Trustee, fails to perform which case the parties would have to 2007; the Acquisition was announced in in accordance with the timeframes appoint a different co-trustee until the the third quarter of 2008. The Applicant contained in the relevant Pooling and replacement trustee assumed its role. states that, in general, the Pooling and Servicing Agreement following a request The Applicant stated that in certain Servicing Agreements governing the for performance from Wachovia, a cases, Wells Fargo would continue as a applicable Securitizations permit the member of the Restricted Group. The securities administrator, retaining cures detailed in their Application by time as of which a conflict occurs is the certain reporting requirements but be contemplating a Trustee’s resignation earlier of the day immediately following responsible to the replacement trustee. and replacement so as to comply with the last day on which compliance is The replacement trustee would have applicable law and providing the required under the relevant Pooling and legal title to the assets of the trust, Trustee the ability to appoint co-trustees Servicing Agreement; or the day on would have fiduciary responsibility to and other agents authorized to carry out which a party affirmatively responds the securities holders and would be the Trustees’ duties. The Applicant that it will not comply with a request for responsible for supervising Wells Fargo notes that the agreements do not performance. in whatever role it retains. Wells Fargo provide specific qualifications for co- Additionally, for purposes of this stated that it would notify the trustees. While the agreements vary in Proposed Amendment, the term conflict Department of Labor of any conflict that the detail, after due diligence, the includes but is not limited to, the arose prior to the replacement of Wells Applicant asserts that it is not aware of following: (1) Wachovia’s failure, as any provisions of the agreements or SEC Sponsor, to repurchase a loan for breach 5 The London Interbank Offered Rate.

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

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

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As illustrated above, the depositing of Restricted Group, i.e., Wachovia in its in the other securitizations where portions of one loan into multiple role as Primary Servicer and Master portions of the loan are collateral. transactions increases the potential Servicer of the Loan. Wachovia has no The Applicant notes that Holders, relationship issues. Though the loan other role in or connection with S4; in including fiduciaries holding on behalf continues to be serviced solely by the fact, all of its obligations arise only of Plans, could bring suit against any Primary, Master and Special servicers under the terms of S1 and the parties to the transaction or could (the Split Loan Servicers) under the first Intercreditor Agreement. The Applicant collectively order the trustee to bring transaction, and notwithstanding that believes that the Underwriter such suits on behalf of the securitization each other transaction discloses the fact Exemptions’ conditions may require (with the threat of replacing the trustee that such loan is serviced under, and that Wells Fargo resign as Trustee of S4, for failure to comply). As a practical pursuant to, the terms of the initial despite the Applicant’s belief that Wells matter, all transaction agreements transaction, these Split Loan Servicers Fargo has no control over Wachovia in provide mechanisms for replacing may fall within the definition of its role as Master Servicer of the Loan parties, a less expensive and more Servicer in the Underwriter Exemptions, (other than as a result of the already certain means of stopping bad behavior. making such parties members of the signed Intercreditor Agreement where it Nonetheless, such suits are possible and Restricted Group for such other cedes control to the unaffiliated bank it is impossible to predict the outcome transactions. As a result, the pool of that is Trustee of S1). of any such suit. Moreover, legislative available unaffiliated trustees for each The Applicant notes that when this and regulatory actions in response to the other transaction is narrowed. type of prohibited relationship is known current economic situation could make The December 31, 2008 Acquisition of before the transactions close, it is such suits far more probable or, in the Wachovia by WFC (Acquisition) caused possible to appoint a co-trustee with alternative, could preempt them a certain fact pattern illustrated by the respect to similarly divided completely. The legislative and following example to emerge in these participations in a loan. In this case, regulatory situation, both at the federal nine CMBS transactions (Split Loan however, with the transactions already and the state and local level, is too Transactions List): closed, the Applicant asserts that much in flux to even predict how the 1. Banc of America Commercial appointing a co-trustee would likely landscape might look one, two or ten Mortgage Trust 2006–4. require an amendment to the pooling years in the future. This lack of 2. Banc of America Commercial and servicing agreement, which may predictability, though, is pervasive in Mortgage Trust 2007–2. require the consent of all the security the capital markets. There is no feature 3. Banc of America Commercial holders (a situation made even more of the split loan structure that makes it Mortgage Trust 2008–LS1. problematic with book-entry securities). any more susceptible to legal action, 4. Citigroup Commercial Mortgage Consequently, the Applicant believes legislative or regulatory decisions, etc. Trust 2008–C7. that the appointment of a co-trustee is The Applicant believes that splitting a 5. COMM 2004–LNB–2. not feasible. large loan among several securitizations The Applicant represents that the 6. COMM 2007–C9. is best viewed as a matter of prudence. presence of an independent trustee in 7. J.P. Morgan Chase Commercial While allowing large loans to be made S1 (the unaffiliated bank), which is Mortgage Securities Trust 2006–CIBC16. when appropriate underwriting responsible for the actions of the Master 8. LB–UBS Commercial Mortgage considerations are taken into account, Servicer, provides sufficient protection splitting the loan into multiple notes Trust 2004–C2. against any harm the prohibited spreads the risk among several 9. Morgan Stanley Capital I Trust relationship in S4 could cause. As an transactions and prevents too great a 2005–HQ5. additional safeguard, if the Loan were concentration in any one transaction. For example, a large commercial loan ever to become delinquent, servicing The Applicant has provided the (Loan) is split among four transactions. would be transferred to the Special Department with a detailed description Each securitization trust, S1, S2, S3 and Servicer who is unaffiliated with Wells of one particular intercreditor agreement S4, contains a pari passu portion of the Fargo. Further, the Intercreditor (the Agreement) and a redacted copy of Loan. Wachovia is the Primary Servicer Agreement was negotiated and signed the Agreement, as well as the related of the Loan. Because S1 closes first, the prior to any indication that a prohibited provisions in the applicable pooling and entire Loan is serviced by Wachovia relationship would exist in any of the servicing agreements (PSAs). The under the S1 securitization and the trusts. Thus, the Applicant asserts, that Applicant states that in the subsequent trustees of the four trusts sign an the agreement could not have been loan transactions that arise from the intercreditor agreement. An unaffiliated drafted in a manner as to favor Wells initial securitizations identified in the bank is Trustee of S1; Wachovia is Fargo or Wachovia at the expense of any Split Loan Transactions List, the Master Servicer of S1 and CW Capital is Plan, or to otherwise circumvent the trustees have agreed (or, more Special Servicer of S1. Pursuant to the conditions of the Underwriter accurately, have inherited an agreement Intercreditor Agreement, because Exemption. Additionally, the Applicant made by its predecessor in interest) to Wachovia is Master Servicer of all the believes that the presence of an a passive role with limited rights loans in S1, Wachovia is now the Master independent trustee for the Loan and exercisable only under extreme Servicer for the Loan in S1, S2, S3 and the lack of discretion on the part of circumstances and that the PSAs for S4. As noted above, Wachovia is also Wells Fargo as Trustee of S4 is factually these subsequent securitizations the Primary Servicer. similar to the situation created with the confirm this passivity. Thus, the While S1, S2, S3 and S4 are all appointment of a co-trustee. The Applicant asserts that the obligations structured to comply with one or more Applicant believes that, if responsibility detailed in the PSAs are ministerial, not of the Underwriter Exemptions, a for the servicing of the Loan is confined discretionary. The Applicant states that problem may arise because Wells Fargo to the servicer of one of the the PSAs are explicit that the loan is not is the Trustee of S4. With the securitization vehicles, such servicer serviced or administered from the acquisition of Wachovia by Wells Fargo, should not be considered a member of subsequent securitizations and that the Wells Fargo, in its role as Trustee of S4, the Restricted Group within the parties to these securitizations are not is now affiliated with a member of the meaning of the Underwriter Exemptions obligated or authorized to supervise the

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administration and servicing of the loan respect to the piece of the loan in its trustee of the subsequent securitizations in the initial securitization. transaction or the certification of non- in each Split Loan Transaction for the The Applicant represents further that recoverability (under the terms of other nine transactions identified in the Split a split loan is serviced in the first PSAs—there is some variance among Loan Transaction List, that are transaction to close and the Intercreditor pooling and servicing agreements otherwise eligible for relief under the Agreement governs the servicing of the between approach (i) and approach (ii)). Underwriter Exemptions. split loan under the first transaction Even in case (ii), the process is not 11. The Applicant notes that Plans (and limits the rights and discretionary. While there is admittedly acquired Securities issued under the responsibilities of other holders of some leeway (that could be interpreted Securitizations in reliance on the pieces of the loan). The terms of the as discretion) in valuing the loan, it is exemptive relief provided by the PSA for any subsequent transaction in the trustee’s economic interest to Underwriter Exemptions. Absent containing a piece of the split loan make an accurate determination. If the additional relief, the Acquisition has specify that the master servicer, the trustee places too high a value on the caused these granted exemptions to special servicer and the trustee of such asset, it risks not being repaid the cease to apply to several of the subsequent transaction ‘‘shall have no advance (and note that it is an advance, Securitizations. Wells Fargo represents obligation or authority’’ to service the so there is the expectation of that the Securities issued in transactions loan or to direct the servicing of the repayment). Too low a value, and the such as the Securitizations are attractive split loan or, subject to extremely trustee risks action by securityholders investments for Plans subject to Title I limited exceptions, to make advances that would have benefited from the of ERISA or section 4975 of the Code with respect to the split loan. The only advance (such holders eventually get and conversely, such plans are an responsibilities left for the trustee of a their money, but lose the time value). If important market for issuers of such subsequent transaction are: (i) To keep the trustee is bound by a PSA that Securities. Wells Fargo asserts that to photocopies of the ‘‘Mortgage File’’; 13 permits a certification in lieu of the force Wells Fargo to resign as Trustee in (ii) to release said Mortgage File upon advance, such certification requires an all of the Securitizations before the payment in full of the loan; and (iii) to explanation of the basis for the Acquisition was not administratively make advances with respect to the loan determination and such explanation feasible because the number of available to the extent that the advance would be requires an objective determination that trustees is limited and there is work recoverable and such advance has not would satisfy securityholders. The required in changing trustees. Similarly, been made by the Master Servicer of the objectivity of the process indicates that to have the exemptions no longer apply first transaction or the Master Servicer discretion plays, at most, a minimal to the Securitizations would force the of the second transaction. role. Plans to sell their securities in the The Applicant states that the first two The Applicant concludes that current unstable market, likely at a loss. responsibilities, keeping a photocopy of consequently, it should not matter that The Applicant additionally notes that the Mortgage File and releasing it, are the trustee for the subsequent although the Acquisition has been completely ministerial and involve no securitization is related to the Master widely covered, it is conceivable that discretion. The third responsibility is Servicer or Special Servicer for the Plan fiduciaries would not realize that also non-discretionary. The Master initial securitization; provided that any the Underwriter Exemption relied upon Servicer of the first transaction (MS1) is such party is not otherwise a member of by the Plans had ceased to apply, raising obligated under the PSA for the first the Restricted Group with respect to the the possibility that a Plan would not sell transaction to either make the advance subsequent securitization. More and that non-exempt prohibited or certify that it would be generally, because the relevant features transactions would occur. nonrecoverable. If MS1 neither makes of the Agreement are substantially 12. Wells Fargo states that the Plans the advance nor certifies as to similar to those found in all purchased Securities in reliance on PTE nonrecoverability, the same obligation intercreditor agreements used in the 96–22 or PTE 2002–19. At that time, the falls on the Master Servicer of the market, the Applicant requests that the Plans had no knowledge that the related subsequent transaction (MS2). Department determine that if the only Trustee would become an Affiliate of MS2 only has the obligation with potentially prohibited affiliation is one or more members of the Restricted respect to the piece of the loan in its between a trustee and a servicer of a Group. On or after the Acquisition, transaction. If MS2 also neither loan serviced in another securitization except in cases covered by PTE 96–22 advances nor certifies, the trustee of the under the eye of an independent trustee, as amended by PTE 2000–58 (providing second transaction either (i) must make the trustee of the subsequent a six-month window for Trustee- the advance with respect to the piece of securitization should not be disqualified Servicer affiliations) or PTE 2002–41 the loan in its transaction (with no in the case of an affiliation arising as a (Trustee-Underwriter affiliations), the authority under certain PSAs to pass result of a merger between the trustee purchased Securities would no longer judgment on non-recoverability) or (ii) and servicer that occurs subsequent to be afforded coverage under the must make either the advance with the securitization solely because of such Underwriter Exemptions and the Plans affiliation. would have been obligated to sell the 13 The Mortgage File is defined in the PSA to Based on the representations and Securities prior to December 31, 2008. include, among other documents, the original documents that the Applicant has The Applicant asserts that this is executed mortgage note and the original or in some cases, a copy of: The mortgage and any assignment provided to the Department, the problematic for several reasons. First, as and recordation; assignment of all unrecorded Department is of the view that, if the is customary for such transactions, the documents related to the mortgage loan; any affiliation between the Master Servicer physical securities are not used in most modification, consolidation, assumption and of the first Securitization and a trustee cases. Rather, an electronic system, substitution agreements; the policy or certificate of lender’s title insurance or irrevocable binding of a loan serviced in a subsequent usually the Depository Trust Company’s commitment; filings of relevant UCC Financial securitization is solely as a consequence electronic system, is utilized and the Statements; any ground lease and related of the acquisition of Wachovia by Wells securities are in global form. In such documents; any relevant intercreditor agreement, Fargo, the Master Servicer of the first cases, it is difficult (and may be loan agreement, letter of credit, management and franchise agreements; and any documents related to securitization would not be considered impossible) to ascertain the beneficial any companion loan. a member of the Restricted Group of a ownership of the securities, meaning

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that it is not known whether Plans are 1. The fact that a transaction is the 96–22, 61 FR 14828 (April 3, 1996), as owners and to what extent. The subject of an exemption under section amended by PTE 97–34, 62 FR 39021 Applicant claims that identifying the 408(a) of the Act and section 4975(c)(2) (July 21, 1997), PTE 2000–58, 65 FR affected Plans would be time consuming of the Code does not relieve a fiduciary 67765 (November 13, 2000), PTE 2002– and expensive, and may be impossible or other party in interest or disqualified 41, 67 FR 54487 (August 22, 2002) and to do with complete accuracy because of person from certain other provisions of PTE 2007–05, 72 FR 13130 (March 20, the book-entry system under which the Act and the Code, including any 2007) as corrected at 72 FR 16385 (April Securities were issued. As stated above, prohibited transaction provisions to 4, 2007) (PTE 2007–05), (PTE 96–22) the Applicant represents that notice of which the exemption does not apply and PTE 2002–19, 67 FR 14979 (March this request for relief was posted on the and the general fiduciary responsibility 28, 2002) as amended by PTE 2007–05, Trustee’s Web site at the time this provisions of section 404 of the Act, (PTE 2002–19). Application was submitted, which which require, among other things, a 1. Subsection II.A.(4) of PTE 96–22 is would be updated to reflect any action fiduciary to discharge his or her duties amended to add a new subsection (c) of the Department with respect to the respecting the plan solely in the interest and subsection II.A.(4) of PTE 2002–19 Application. The Applicant has of the participants and beneficiaries of is amended to add a new subsection (d) informed the Department that, as noted the plan and in a prudent fashion in that read as follows: above, although Wells Fargo has been accordance with section 404(a)(1)(B) of (c) [(d) of PTE 2002–19] Effective December replaced as Trustee by March 31, 2009, the Act; nor does it affect the 31, 2008 through June 30, 2009, Wells Fargo, Wells Fargo will remain as the securities requirements of section 401(a) of the N.A., the Trustee, shall not be considered to administrator for any of the Code that the plan operate for the be an Affiliate of any member of the Securitizations on the Securitization exclusive benefit of the employees of Restricted Group solely as the result of the List for which it was providing such the employer maintaining the plan and acquisition of Wachovia Corporation and its services. Further, the Applicant has their beneficiaries; affiliates (Wachovia) by Wells Fargo & indicated that either Wells Fargo (in 2. Before an exemption can be granted Company and its subsidiaries (WFC), the cases where Wells Fargo continues as under section 408(a) of the Act and parent holding company of Wells Fargo, N.A. section 4975(c)(2) of the Code, the (the Acquisition), which occurred after the securities administrator) or the initial issuance of the Securities, provided replacement trustee (in all other cases) Department must find that the that: will continue to update its Web site exemption is administratively feasible, (i) The Trustee, Wells Fargo, N.A., ceases concerning the status of the Proposed in the interest of the plans and of their to be an Affiliate of any member of the Amendment. In this regard, the participants and beneficiaries and Restricted Group no later than June 30, 2009; Applicant also requests that the protective of the rights of participants (ii) Any member of the Restricted Group publication of the Proposed and beneficiaries of the plans; and that is an Affiliate of the Trustee, Wells Amendment in the Federal Register 3. The proposed amendment, if Fargo, N.A., did not breach any of its serve as the Notice to Interested Persons granted, will be supplemental to, and obligations under the Pooling and Servicing Agreement, unless such breach was for purposes of this submission. not in derogation of, any other immaterial and timely cured in accordance Second, and more importantly, The provisions of the Act and/or the Code, with the terms of such agreement, during the Applicant notes that the current including statutory or administrative period from December 31, 2008 through the disruption in the mortgage-backed exemptions and transitional rules. date the member of the Restricted Group securities market makes sales Furthermore, the fact that a transaction ceased to be an Affiliate of the Trustee, Wells problematic, both in terms of finding is subject to an administrative or Fargo, N.A.; and buyers and establishing proper statutory exemption is not dispositive of (iii) In accordance with each Pooling and valuation. Granting the requested relief whether the transaction is in fact a Servicing Agreement, the Trustee, Wells prevents these problems. The Applicant Fargo, N.A., appoints a co-trustee, which is prohibited transaction. not an Affiliate of Wachovia or any other states further that the relief is of the member of the Restricted Group, no later same duration, six months, as that Written Comments and Hearing Requests than the earlier of (A) March 31, 2009 or (B) already provided by the Department for five business days after Wells Fargo, N.A. Trustee-Servicer affiliations, suggesting All interested persons are invited to becomes aware of a conflict between the that the Department has already submit written comments or requests for Trustee and any member of the Restricted determined that this period is a hearing on the pending amendment to Group that is an Affiliate of the Trustee. The sufficiently brief to prevent serious the address above, within the time co-trustee will be responsible for resolving conflicts of interest from arising. frame set forth above, after the any conflict between the Trustee and any 13. Wells Fargo requests that the publication of this proposed member of the Restricted Group that has relief, if granted, be made retroactive to amendment in the Federal Register. All become an Affiliate of the Trustee as a result of the Acquisition; provided, that if the December 31, 2008, the Acquisition comments will be made a part of the Trustee has resigned on or prior to March 31, Date. If the relief is granted record. Comments received will be 2009 and no event described in clause (B) has retroactively, Plans would be able to available for public inspection with the occurred, no co-trustee shall be required. retain their prior Securitization Application at the address set forth (iv) For purposes of this subsection investments and to purchase Securities above. II.A.(4)(c) [subsection II.A.(4)(d) of PTE in the secondary market relying upon 2002–19], a conflict arises whenever (A) Proposed Exemption the Underwriter Exemptions once Wachovia, as a member of the Restricted exemptive relief is granted, even if the Based on the facts and representations Group, fails to perform in accordance with transactions originally closed or will set forth in the application, under the the timeframes contained in the relevant Pooling and Servicing Agreement following a close prior to the date the final authority of section 408(a) of the Act and section 4975(c)(2) of the Code and request for performance from Wells Fargo, Amendment is published in the Federal N.A., as Trustee, or (B) Wells Fargo, N.A., as Register, if granted by the Department. in accordance with the procedures set Trustee, fails to perform in accordance with forth in 29 CFR Part 2570, Subpart B (55 General Information the timeframes contained in the relevant FR 32836, August 10, 1990), the Pooling and Servicing Agreement following a The attention of interested persons is Department proposes to modify request for performance from Wachovia, a directed to the following: Prohibited Transaction Exemption (PTE) member of the Restricted Group.

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The time as of which a conflict occurs is based on a value of the London Interbank 2002–19 is temporarily extended to the earlier of: The day immediately following Offered Rate (LIBOR) that Wells Fargo, N.A., include language applicable to the last day on which compliance is required as Trustee, considers erroneous. transactions on the Securitization List at under the relevant Pooling and Servicing Agreement; or the day on which a party 2. The Definition of ‘‘Underwriter’’ at section III.KK [or section III.LL. of PTE affirmatively responds that it will not comply section III.C. of PTE 96–22 and PTE 2002–19] and reads: with a request for performance. 2002–19 is temporarily amended to D. ‘‘Sponsor’’ means: For purposes of this subsection II.A.(4)(c) include Wachovia and J.P. Morgan (1) The entity that organizes an Issuer by [subsection II.A.(4)(d) of PTE 2002–19], the Securities Inc. for the period noted and depositing obligations therein in exchange term ‘‘conflict’’ includes but is not limited to, reads: for Securities; or the following: (1) Wachovia’s failure, as Sponsor, to repurchase a loan for breach of C. Effective December 31, 2008 through (2) Effective December 31, 2008 through representation within the time period June 30, 2009, June 30, 2009, for those transactions listed on prescribed in the relevant Pooling and ‘‘Underwriter’’ means: the Securitization List at section III.KK. [at Servicing Agreement, following Wells Fargo, (1) Wachovia or J.P. Morgan Securities Inc.; section III.LL. of PTE 2002–19], Wachovia. N.A.’s request, as Trustee, for performance; (2) Any person directly or indirectly, (2) Wachovia, as Sponsor, notifies Wells through one or more intermediaries, 4. Section III. of PTE 96–22 is Fargo, N.A., as Trustee, that it will not controlling, controlled by or under common temporarily amended to add a new repurchase a loan for breach of control with such entities; or section III.KK and Section III. of PTE representation, following Wells Fargo, N.A.’s (3) Any member of an underwriting 2002–19 is temporarily amended to add request that Wachovia repurchase such loan syndicate or selling group of which such firm a new section III.LL. that read as within the time period prescribed in the or person described in subsections III.C.(1) or follows: relevant Pooling and Servicing Agreement (2) is a manager or co-manager with respect (the notification occurs prior to the to the Securities. expiration of the prescribed time period for KK. [LL. of PTE 2002–19] Effective December the repurchase); and (3) Wachovia, as Swap 3. The Definition of ‘‘Sponsor’’ at 31, 2008 through June 30, 2009, Counterparty, makes or requests a payment section III.D. of PTE 96–22 and PTE ‘‘Securitization List’’ means:

Name Issuance type Wachovia role Exemption

First Union Commercial Mortgage Trust CMBS ...... Master Servicer: First Union National Bank Sponsor: First 96–22 FUNB Series 1999–C1. Union National Bank Underwriter: First Union Capital Mar- kets. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2003–C6. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2003–C8. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2004–C10. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2004–C11. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2006–C23. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2006–C25. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2002–C01. Bank, N.A. Underwriter: First Union Securities, Inc. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2002–C2. Bank, N.A. Underwriter: Wachovia Securities, Inc. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2003—C3. Bank, N.A. Underwriter: Wachovia Securities, Inc. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2003–C5. Bank, N.A. Underwriter: Wachovia Securities, Inc. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2003–C7. Bank, N.A. Underwriter: Wachovia Securities, Inc. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2004–C15. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. Banc of America Commercial Mortgage CMBS ...... Master Servicer: First Union National Bank Sponsor: First 96–22 Trust, Series 2001–3. Union National Bank Underwriter: First Union Securities, Inc. First Union Commercial Mortgage Trust, CMBS ...... Master Servicer: First Union National Bank Sponsor: First 96–22 Series 2001–C4. Union National Bank Underwriter: First Union Securities, Inc. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2003–C4. Bank, N.A. Underwriter: Wachovia Securities, Inc. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2003–C9. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2005–C16. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2005–C17. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. COBALT CMBS Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2006–C1. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. COBALT CMBS Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2007–C2. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. COBALT CMBS Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2007–C3. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC.

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Name Issuance type Wachovia role Exemption

Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2006–C27. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2006–C29. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Swap Provider: 96–22 Trust, Series 2007–C32. Wachovia Bank, N.A. Sponsor: Wachovia Bank, N.A. Under- writer: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series, 2005–C22. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2007–C33. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Sponsor: Wachovia 96–22 Trust, Series 2007–C34. Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. J.P. Morgan Chase Commercial Mortgage CMBS ...... Servicer: Wachovia Bank, N.A. Sponsor: Wachovia Bank, N.A. 2002–19 Securities Corp., Series 2002–C1. Underwriter: Wachovia Securities, Inc. (but note that PTE 96–22 is not relied on in the disclosure document). Wachovia Bank Commercial Mortgage CMBS ...... Servicer: Wachovia Bank, N.A. Special Servicer: Wachovia 96–22 Trust, Series 2006 WHALE 7. Bank, N.A. Sponsor: Wachovia Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Swap Provider: 96–22 Trust, Series 2005–C21. Wachovia Bank, N.A. Sponsor: Wachovia Bank, N.A. Under- writer: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Swap Provider: 96–22 Trust, Series 2005–C19. Wachovia Bank, N.A. Sponsor: Wachovia Bank, N.A. Under- writer: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Swap Provider: 96–22 Trust, Series 2006–C26. Wachovia Bank, N.A. Sponsor: Wachovia Bank, N.A. Under- writer: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Swap Provider: 96–22 Trust, Series 2006–C28. Wachovia Bank, N.A. Sponsor: Wachovia Bank, N.A. Under- writer: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Swap Provider: 96–22 Trust, Series 2007–C30. Wachovia Bank, N.A. Sponsor: Wachovia Bank, N.A. Under- writer: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Swap Provider: 96–22 Trust, Series 2007–C31. Wachovia Bank, N.A. Sponsor: Wachovia Bank, N.A. Under- writer: Wachovia Capital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Master Servicer: Wachovia Bank, N.A. Special Servicer: 96–22 Trust, Series 2007–ESH. Wachovia Bank, N.A. Swap Provider: Wachovia Bank, N.A. Sponsor: Wachovia Bank, N.A. Underwriter: Wachovia Cap- ital Markets, LLC. Wachovia Bank Commercial Mortgage CMBS ...... Servicer: Wachovia Bank, N.A. Special Servicer: Wachovia 96–22 Trust, Series 2005–WHALE 6. Bank, N.A. Sponsor: Wachovia Bank, N.A. Underwriter: Wachovia Capital Markets, LLC. First Union–Lehman Brothers Wells Fargo, CMBS ...... Master Servicer: First Union National Bank Sponsor First 96–22 Series 1998–C2. Union National Bank Underwriter: First Union Capital Mar- kets. Legend: CMBS = Commercial mortgage-backed securitizations

The availability of this amendment, if Signed at Washington, DC, this 24th day of DEPARTMENT OF LABOR granted, is subject to the express August 2009. condition that the material facts and Ivan L. Strasfeld, Employee Benefits Security representations contained in the Director of Exemption Determinations, Administration Application are true and complete and Employee Benefits Security Administration, [Application No. L–11482] accurately describe all material terms of U.S. Department of Labor. the transactions. In the case of [FR Doc. E9–20736 Filed 8–27–09; 8:45 am] Notice of Proposed Individual continuing transactions, if any of the BILLING CODE 4510–29–P Exemption Involving The Alaska material facts or representations Laborers-Construction Industry described in the Application change, the Apprenticeship Training Trust (the amendment will cease to apply as of the Plan), Located in Seattle, WA date of such change. In the event of any AGENCY: Employee Benefits Security such change, an application for a new Administration, U.S. Department of amendment must be made to the Labor. Department. ACTION: Notice of proposed individual exemption.

SUMMARY: This document contains a notice of pendency before the Department of Labor (the Department) of

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