30622 Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 

telephone number (202) 693–3008 (this 

is not a toll-free number) or by e-mail: 

gibbons.scott@dol.gov. 

Signed in Washington, DC, this 19th day of 

June 2009. 

Douglas F. Small, 

Deputy Assistant Secretary, Employment and 

Training Administration. 

[FR Doc. E9–15164 Filed 6–25–09; 8:45 am] 

BILLING CODE 4510–FW–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

Notice of a Change in Status of an 

Extended Benefit (EB) Period for 

Florida 

AGENCY: Employment and Training 

Administration, Labor. 

ACTION: Notice. 

SUMMARY: This notice announces a 

change in benefit period eligibility 

under the EB program for Florida. 

The following change has occurred 

since the publication of the last notice 

regarding Florida’s EB status: 

• Florida has modified its law by 

adding a total unemployment rate (TUR) 

trigger retroactive to February 1, 2009. 

As a result, Florida has retroactively 

triggered ‘‘on’’ to a high unemployment 

period (HUP) for weeks of 

unemployment beginning February 22, 

2009, and eligible unemployed workers 

will be able to collect up to an 

additional 20 weeks of unemployment 

insurance benefits. 

Information for Claimants 

The duration of benefits payable in 

the EB program, and the terms and 

conditions on which they are payable, 

are governed by the Federal-State 

Extended Unemployment Compensation 

Act of 1970, as amended, and the 

operating instructions issued to the 

states by the U.S. Department of Labor. 

In the case of a state beginning an HUP, 

the State Workforce Agency will furnish 

a written notice of potential entitlement 

to each individual who has exhausted 

all rights to regular benefits and is 

potentially eligible for EB (20 CFR 

615.13(c)(1)). Persons who believe they 

may be entitled to EB or who wish to 

inquire about their rights under the 

program should contact their State 

Workforce Agency. 

FOR FURTHER INFORMATION CONTACT: 

Scott Gibbons, U.S. Department of 

Labor, Employment and Training 

Administration, Office of Workforce 

Security, 200 Constitution Avenue, 

NW., Frances Perkins Building, Room 

S–4231, Washington, DC 20210, 

telephone number (202) 693–3008 (this 

is not a toll-free number) or by e-mail: 

gibbons.scott@dol.gov. 

Signed in Washington, DC, this 19th day of 

June 2009. 

Douglas F. Small, 

Deputy Assistant Secretary, Employment and 

Training Administration. 

[FR Doc. E9–15166 Filed 6–25–09; 8:45 am] 

BILLING CODE 4510–FW–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

Notice of a Change in Status of an 

Extended Benefit (EB) Period for Ohio 

AGENCY: Employment and Training 

Administration, Labor. 

ACTION: Notice. 

SUMMARY: This notice announces a 

change in benefit period eligibility 

under the EB program for Ohio. 

The following change has occurred 

since the publication of the last notice 

regarding the State’s EB status: 

• Ohio has modified its law by 

adding a total unemployment rate (TUR) 

trigger retroactive to February 22, 2009. 

As a result, Ohio has retroactively 

triggered ‘‘on’’ to a high unemployment 

period (HUP) for weeks of 

unemployment beginning March 15, 

2009, and eligible unemployed workers 

will be able to collect up to an 

additional 20 weeks of unemployment 

insurance benefits. 

Information for Claimants 

The duration of benefits payable in 

the EB Program, and the terms and 

conditions on which they are payable, 

are governed by the Federal-State 

Extended Unemployment Compensation 

Act of 1970, as amended, and the 

operating instructions issued to the 

states by the U.S. Department of Labor. 

In the case of a state beginning an HUP, 

the State Workforce Agency will furnish 

a written notice of potential entitlement 

to each individual who may be eligible 

for increased benefits due to the HUP 

(20 CFR 615.13(c)(1)). Persons who wish 

to inquire about their rights under the 

program should contact their State 

Workforce Agency. 

FOR FURTHER INFORMATION CONTACT: 

Scott Gibbons, U.S. Department of 

Labor, Employment and Training 

Administration, Office of Workforce 

Security, 200 Constitution Avenue, 

NW., Frances Perkins Building, Room 

S–4231, Washington, DC 20210, 

telephone number (202) 693–3008 (this 

is not a toll-free number) or by e-mail: 

gibbons.scott@dol.gov. 

Signed in Washington, DC, this 19th day of 

June 2009. 

Douglas F. Small, 

Deputy Assistant Secretary, Employment and 

Training Administration. 

[FR Doc. E9–15165 Filed 6–25–09; 8:45 am] 

BILLING CODE 4510–FW–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

Prohibited Transaction Exemptions 

and Grant of Individual Exemptions 

Involving: 2009–15, D–11493, Schloer 

Enterprises, Inc., 2009–16, D–11519, 

Amendment to Prohibited Transaction 

Exemption (PTE) 90–29, 55 FR 21459 

(May 24, 1990), 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 90–29), 

Involving Merrill Lynch, Pierce, Fenner 

& Smith, Inc., the Principal Subsidiary 

of Merrill Lynch & Co., Inc. and Its 

Affiliates (Merrill Lynch) and to PTE 

2002–19, 67 FR 14979 (March 28, 2002) 

as Amended by PTE 2007–05, (PTE 

2002–19), Involving J.P. Morgan Chase 

& Company and Its Affiliates 2009–17, 

D–11536 Through D–11550, Individual 

Retirement Accounts (the IRAs) for 

Ralph Hartwell, Harold Latin, Kenlon 

Johnson, Carol Johnson, Shanon 

Taylor, Michael Ball, Dianne Barkas, 

Roy Barkas, Harry DeWall, Alice Pike, 

Steven Larsen, C. Timothy Hopkins, 

Wayne Meuleman, Robert L. Miller, and 

Richard T. Scott, Collectively, the 

Participants 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Grant of individual exemptions. 

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 

Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 30623 

1Section 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). 

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. 

Schloer Enterprises, Inc., 401(k) Profit 

Sharing Plan (the Plan), Located in 

Pottstown, PA 

[Prohibited Transaction Exemption 2009–15; 

Exemption Application No. D–11493] 

Exemption 

The restrictions of 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 (c)(1)(D) through (E) 

of the Code, shall not apply to the sale 

of a certain parcel of real property (the 

Property) by the Plan to Craig J. Schloer, 

a party in interest with respect to the 

Plan, provided that the following 

conditions are satisfied: 

(a) The sale is a one-time transaction 

for cash; 

(b) 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; 

(c) The sales price is the greater of 

$381,991 or the fair market value of the 

Property as of the date of the 

transaction, as determined by a 

qualified, independent appraiser; 

(d) The Plan pays no commissions, 

costs, or other expenses in connection 

with the sale; and 

(e) The Plan fiduciary will review and 

approve the methodology used by the 

qualified, independent appraiser, ensure 

that such methodology is properly 

applied in determining the Property’s 

fair market value, and will also 

determine whether it is prudent to go 

forward with the transaction. 

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 

February 25, 2009 at 72 FR 8579. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Karin Weng of the Department, 

telephone (202) 693–8557. (This is not 

a toll-free number). 

Amendment to Prohibited Transaction 

Exemption (PTE) 90–29, 55 FR 21459 

(May 24, 1990), 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 90–29), Involving 

Merrill Lynch, Pierce, Fenner & Smith, 

Inc., the Principal Subsidiary of Merrill 

Lynch & Co., Inc. and Its Affiliates 

(Merrill Lynch) and to PTE 2002–19, 67 

FR 14979 (March 28, 2002) as Amended 

by PTE 2007–05, (PTE 2002–19), 

Involving J.P. Morgan Chase & 

Company and Its Affiliates 

[Prohibited Transaction Exemption 2009–16; 

Exemption Application Number D–11519] 

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) and based upon the 

entire record, the Department amends 

PTE 90–29, 55 FR 21459 (May 24, 1990), 

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 90– 

29) and PTE 2002–19, 67 FR 14979 

(March 28, 2002) as amended by PTE 

2007–05 (PTE 2002–19). 

I. Transactions 

A. Effective January 1, 2009, 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

B. Effective January 1, 2009, 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 

30624 Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 

2For 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. 

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. 

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 

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; 

(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 January 1, 2009, 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 

(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 January 1, 2009, 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’slength 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) Effective January 1, 2009 through 

July 1, 2009, Bank of America, 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 Merrill Lynch & Co., Inc. 

and its affiliates (Merrill Lynch) by Bank 

of America Corporation and its 

subsidiaries (Bank of America), the 

parent holding company of Bank of 

America, N.A. (the Acquisition), which 

occurred after the initial issuance of the 

Securities, provided that: 

(i) The Trustee, Bank of America, 

N.A., ceases to be an Affiliate of any 

member of the Restricted Group no later 

than July 1, 2009; 

(ii) Any member of the Restricted 

Group that is an Affiliate of the Trustee, 

Bank of America, 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 

Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 30625 

4On March 16, 2009, Bank of America, N.A. 

informed the Department that for all 49 of the 

transactions on the Securitization List at Sec. III.KK, 

the replacement trustees will be in place as of 

March 31, 2009. 

January 1, 2009 through the date the 

member of the Restricted Group ceased 

to be an Affiliate of the Trustee, Bank 

of America, N.A.; and 

(iii) In accordance with each Pooling 

and Servicing Agreement, the Trustee, 

Bank of America, N.A., appoints a cotrustee, which is not an Affiliate of 

Merrill Lynch or any other member of 

the Restricted Group, no later than the 

earlier of (A) April 1, 2009 or (B) five 

business days after Bank of America, 

N.A. becomes aware of a conflict 

between the Trustee and any member of 

the Restricted Group that is an Affiliate 

of the Trustee. The co-trustee will be 

responsible for resolving any conflict 

between the Trustee and any member of 

the Restricted Group that has become an 

Affiliate of the Trustee as a result of the 

Acquisition; provided, that if the 

Trustee has resigned on or prior to April 

1, 2009 and no event described in clause 

(B) has occurred, no co-trustee shall be 

required.4

(iv) For purposes of this subsection 

II.A.(4)(c), a conflict arises whenever (A) 

Merrill Lynch, 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 Bank of America, 

N.A., as Trustee, or (B) Bank of America, 

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 Merrill Lynch, 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), the term ‘‘conflict’’ includes 

but is not limited to, the following: (1) 

Merrill Lynch’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 Bank of 

America, N.A.’s request, as Trustee, for 

performance; (2) Merrill Lynch, as 

Sponsor, notifies Bank of America, N.A., 

as Trustee, that it will not repurchase a 

loan for breach of representation, 

following Bank of America, N.A.’s 

request that Merrill Lynch 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) Merrill Lynch, as 

Swap Counterparty, makes or requests a 

payment based on a value of the London 

Interbank Offered Rate (LIBOR) that 

Bank of America, 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 a 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 PreFunding 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 PreFunding 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 PreFunding 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 PreFunding 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; 

30626 Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 

(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 

(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 

Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 30627 

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). 

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. 

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 

(f) Fractional undivided interests in 

any of the obligations described in 

clauses (a)–(e) of this subsection B.(1).6

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 PreFunding 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. ‘‘Underwriter’’ means: 

(1) Merrill Lynch; 

(2) Any person directly or indirectly, 

through one or more intermediaries, 

controlling, controlled by or under 

common control with Merrill Lynch; or 

(3) Any member of an underwriting 

syndicate or selling group of which a 

person described in subsections III.C.(1) 

or (2) is a manager or co-manager with 

respect to the Securities. 

Effective January 1, 2009 through July 

1, 2009, ‘‘Underwriter’’ means: 

(1) Merrill Lynch or J.P. Morgan 

Securities Inc.; 

(2) Any person directly or indirectly, 

through one or more intermediaries, 

controlling, controlled by or under 

common control with such entities; or 

(3) Any member of an underwriting 

syndicate or selling group of which such 

firm or person described in subsections 

III.C.(1) or (2) is a manager or comanager 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 January 1, 2009 through 

July 1, 2009, for those transactions listed 

on the Securitization List at section 

III.KK., Merrill Lynch. 

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. 

30628 Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 

‘‘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 

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 PreFunding 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 

Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 30629 

7PTE 84–14 provides a class exemption for 

transactions between a party in interest with respect 

to an employee benefit plan and an investment fund 

(including either a single customer or pooled 

separate account) in which the plan has an interest, 

and which is managed by a QPAM, provided 

certain conditions are met. QPAMs (e.g., banks, 

insurance companies, registered investment 

advisers with total client assets under management 

in excess of $85 million) are considered to be 

experienced investment managers for plan investors 

that are aware of their fiduciary duties under 

ERISA. 

8PTE 96–23 permits various transactions 

involving employee benefit plans whose assets are 

managed by an INHAM, an entity which is 

generally a subsidiary of an employer sponsoring 

the plan which is a registered investment adviser 

with management and control of total assets 

attributable to plans maintained by the employer 

and its affiliates which are in excess of $50 million. 

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 

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); 

(2) An ‘‘in-house asset manager’’ 

(INHAM),8 as defined under Part IV(a) 

of PTE 96–23, 61 FR 15975, 15982 

(April 10, 1996); or 

(3) A plan fiduciary with total assets 

under management of at least $100 

million at the time of the acquisition of 

such Securities. 

II. ‘‘Excess Spread’’ means, as of any 

day funds are distributed from the 

Issuer, the amount by which the interest 

allocated to Securities exceeds the 

amount necessary to pay interest to 

securityholders, servicing fees and 

expenses. 

JJ. ‘‘Eligible Yield Supplement 

Agreement’’ means any yield 

supplement agreement, similar yield 

maintenance arrangement or, if 

purchased by or on behalf of the Issuer, 

an interest rate cap contract to 

supplement the interest rates otherwise 

payable on obligations described in 

subsection III.B.(1). Such an agreement 

or arrangement may involve a notional 

principal contract provided that: 

(1) It is denominated in U.S. dollars; 

(2) The Issuer receives on, or 

immediately prior to the respective 

payment date for the Securities covered 

by such agreement or arrangement, a 

fixed rate of interest or a floating rate of 

interest based on a publicly available 

index (e.g., LIBOR or COFI), with the 

30630 Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 

Issuer receiving such payments on at 

least a quarterly basis; 

(3) It is not ‘‘leveraged’’ as described 

in subsection III.FF.(4); 

(4) It does not incorporate any 

provision which would cause a 

unilateral alteration in any provision 

described in subsections III.JJ.(1)–(3) 

without the consent of the Trustee; 

(5) It is entered into by the Issuer with 

an Eligible Swap Counterparty; and 

(6) It has a notional amount that does 

not exceed either: (i) The principal 

balance of the class of Securities to 

which such agreement or arrangement 

relates, or (ii) the portion of the 

principal balance of such class 

represented solely by those types of 

corpus or assets of the Issuer referred to 

in subsections III.B.(1), (2) and (3). 

KK. Effective January 1, 2009 through 

July 1, 2009, ‘‘Securitization List’’ 

means: 

Name Issuance 

type MLynch role 

CMAC Series 1997 ML1 .................................................................................................................................................. C S, U 

WFPD 1996 WFP–D ....................................................................................................................................................... C S, U 

Merrill Lynch 2003–KEY 1 ............................................................................................................................................... C S, U 

Merrill Lynch Series 1997–C1 ......................................................................................................................................... C S, U 

Merrill Lynch Series 2004–KEY 2 ................................................................................................................................... C S, U 

Merrill Lynch Series 2006–C2 ......................................................................................................................................... C S, U 

Mezz Cap 2004–C2 ......................................................................................................................................................... C S, U 

C–BASS 2007–CB4 ......................................................................................................................................................... R S, U 

First Franklin MLT 2006–FF18 ........................................................................................................................................ R S, U, MS 

First Franklin MLT 2007–01 ............................................................................................................................................ R S, U, MS 

First Franklin MLT 2007–02 ............................................................................................................................................ R U, MS 

First Franklin MLT 2007–03 ............................................................................................................................................ R U, MS 

First Franklin MLT 2007–4 .............................................................................................................................................. R S, U, MS 

First Franklin MLT 2007–5 .............................................................................................................................................. R S, U, MS 

First Franklin MLT 2007–A .............................................................................................................................................. R S, U, MS 

First Franklin MLT 2007–FF1 .......................................................................................................................................... R S, U, MS 

First Franklin MLT 2007–FF2 .......................................................................................................................................... R S, U, MS 

First Franklin MLT 2007–FFA .......................................................................................................................................... R S, U, MS 

First Franklin MLT 2007–FFC ......................................................................................................................................... R S, U, MS 

First Franklin MLT 2007–H1 ............................................................................................................................................ R S, U, MS 

Merrill Lynch Series 2005–SL3 ....................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2006–AHL1 ..................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2006–AR1 ....................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2006–FF1 ....................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2006–FM1 ....................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2006–HE2 ....................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2006–HE3 ....................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2006–HE4 ....................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2006–HE6 ....................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2006–MLN1 .................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2006–OPT1 .................................................................................................................................... R S, U 

Merrill Lynch Series 2006–RM1 ...................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2006–RM2 ...................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2006–RM3 ...................................................................................................................................... R S, U 

Merrill Lynch Series 2006–RM4 ...................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2006–RM5 ...................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2006–SD1 ....................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2006–SL1 ....................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2006–WMC2 ................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2007–HE1 ....................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2007–HE3 ....................................................................................................................................... R S, U, MS 

Merrill Lynch Series 2007–SD1 ....................................................................................................................................... R S, U, MS 

MLMI Trust 2002–AFC1 .................................................................................................................................................. R S, U 

Ownit Mort Loan ABS 2006–3 ......................................................................................................................................... R S, U 

Ownit Mort Loan ABS 2006–4 ......................................................................................................................................... R S, U 

Ownit Mort Loan ABS 2006–5 ......................................................................................................................................... R S, U 

Ownit Mort Loan ABS 2006–6 ......................................................................................................................................... R S, U 

Ownit Mort Loan ABS 2006–7 ......................................................................................................................................... R S, U 

JP Morgan Chase 2003–ML1 (U–JP Morgan Securities Inc.) ........................................................................................ C S 

Legend: 

C = Commercial mortgage-backed securitizations. 

R = Residential mortgage-backed securitizations. 

U = Underwriter. 

S = Sponsor. 

MS = Master Servicer. 

MLynch = Merrill Lynch. 

Effective Date: This amendment was 

effective January 1, 2009. 

For a more complete statement of the 

facts and representations supporting the 

Department’s decision to amend PTE 

90–29 and PTE 2002–19, refer to the 

notice of proposed exemption that was 

published on May 6, 2009 in the 

Federal Register at 74 FR 21002. 

FOR FURTHER INFORMATION CONTACT: 

Wendy M. McColough of the 

Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 30631 

9Because each IRA has only one Participant, 

there is no jurisdiction under 29 CFR 2510.3–3(b). 

However, there is jurisdiction under Title II of the 

Act pursuant to section 4975 of the Code. 

Department, telephone (202) 693–8540 

(This is not a toll-free number). 

Individual Retirement Accounts (the 

IRAs) for Ralph Hartwell, Harold Latin, 

Kenlon Johnson, Carol Johnson, Shanon 

Taylor, Michael Ball, Dianne Barkas, 

Roy Barkas, Harry DeWall, Alice Pike, 

Steven Larsen, C. Timothy Hopkins, 

Wayne Meuleman, Robert L. Miller, 

and Richard T. Scott (Collectively, the 

Participants), Located in Idaho Falls, 

Idaho, and Elsewhere 

[Prohibited Transaction Exemption 2009–17; 

Exemption Application Numbers D–11536 

through D–11550] 

Exemption 

The sanctions resulting from the 

application of section 4975 of the Code, 

by reason of sections 4975(c)(1)(A),(D), 

and (E) of the Code, shall not apply to 

the cash sales (the Sales) of certain 

shares of closely held common stock 

(the Stock) of the Bank of Idaho Holding 

Company (the Company) by the IRAs 9

to the Participants, disqualified persons 

with respect to their respective IRAs, 

provided that the following conditions 

are satisfied: 

(a) The Sale of the Stock by each IRA 

is a one-time transaction for cash; 

(b) The terms and conditions of each 

Sale are at least as favorable to each IRA 

as those obtainable in an arm’s length 

transaction with an unrelated party; 

(c) Each IRA receives the fair market 

value of the Stock on the date of the 

Sale as determined by a qualified, 

independent appraiser; and 

(d) Each IRA does not pay any 

commissions, costs, or other expenses in 

connection with each Sale. 

For a more complete statement of the 

facts and representations supporting the 

Department’s decision to grant this 

exemption, refer to the text of the Notice 

of Proposed Exemption published in the 

Federal Register on March 26, 2009 at 

74 FR 13258. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Judge of the Department, 

telephone (202) 693–8339 (This is not a 

toll-free number). 

General Information 

The attention of interested persons is 

directed to the following: 

(1) The fact that a transaction is the 

subject of an exemption under section 

408(a) of the Act and/or section 

4975(c)(2) of the Code does not relieve 

a fiduciary or other party in interest or 

disqualified person from certain other 

provisions to which the exemption does 

not apply and the general fiduciary 

responsibility provisions of section 404 

of the Act, which among other things 

require a fiduciary to discharge his 

duties respecting the plan solely in the 

interest of the participants and 

beneficiaries of the plan and in a 

prudent fashion in accordance with 

section 404(a)(1)(B) of the Act; nor does 

it affect the requirement of section 

401(a) of the Code that the plan must 

operate for the exclusive benefit of the 

employees of the employer maintaining 

the plan and their beneficiaries; 

(2) This exemption is supplemental to 

and not in derogation of, any other 

provisions of the Act and/or the Code, 

including statutory or administrative 

exemptions and transactional rules. 

Furthermore, the fact that a transaction 

is subject to an administrative or 

statutory exemption is not dispositive of 

whether the transaction is in fact a 

prohibited transaction; and 

(3) The availability of this exemption 

is subject to the express condition that 

the material facts and representations 

contained in the application accurately 

describe all material terms of the 

transaction which is the subject of the 

exemption. 

Signed at Washington, DC, this 22nd day 

of June, 2009. 

Ivan Strasfeld, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. E9–15158 Filed 6–25–09; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

[Application Nos. and Proposed 

Exemptions; D–11432, Iron Workers Local 

17 Pension Fund (the Plan); D–11483 

Urology Clinics of North Texas, P.A. 401(k) 

Profit Sharing Plan and Trust (The Plan); 

and L–11451, Ford Motor Corporation and 

Its Affiliates (collectively, Ford), et al.] 

Notice of Proposed Exemptions 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Notice of Proposed Exemptions. 

SUMMARY: This document contains 

notices of pendency before the 

Department of Labor (the Department) of 

proposed exemptions 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). 

Written Comments and Hearing 

Requests 

All interested persons are invited to 

submit written comments or requests for 

a hearing on the pending exemptions, 

unless otherwise stated in the Notice of 

Proposed Exemption, within 45 days 

from the date of publication of this 

Federal Register Notice. Comments and 

requests for a hearing should state: (1) 

The name, address, and telephone 

number of the person making the 

comment or request, and (2) the nature 

of the person’s interest in the exemption 

and the manner in which the person 

would be adversely affected by the 

exemption. A request for a hearing must 

also state the issues to be addressed and 

include a general description of the 

evidence to be presented at the hearing. 

ADDRESSES: All written comments and 

requests for a hearing (at least three 

copies) should be sent to the Employee 

Benefits Security Administration 

(EBSA), Office of Exemption 

Determinations, Room N–5700, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Washington, DC 20210. 

Attention: Application No. lll stated 

in each Notice of Proposed Exemption. 

Interested persons are also invited to 

submit comments and/or hearing 

requests to EBSA via e-mail or FAX. 

Any such comments or requests should 

be sent either by e-mail to: 

‘‘moffitt.betty@dol.gov’’, or by FAX to 

(202) 219–0204 by the end of the 

scheduled comment period. The 

applications for exemption and the 

comments received will be available for 

public inspection in the Public 

Documents Room of the Employee 

Benefits Security Administration, U.S. 

Department of Labor, Room N–1513, 

200 Constitution Avenue, NW., 

Washington, DC 20210. 

Notice to Interested Persons 

Notice of the proposed exemptions 

will be provided to all interested 

persons in the manner agreed upon by 

the applicant and the Department 

within 15 days of the date of publication 

in the Federal Register. Such notice 

shall include a copy of the notice of 

proposed exemption as published in the 

Federal Register and shall inform 

interested persons of their right to 

comment and to request a hearing 

(where appropriate). 

SUPPLEMENTARY INFORMATION: The 

proposed exemptions were requested in 

applications filed pursuant to section 

408(a) of the Act and/or section 

4975(c)(2) of the Code, and in 

accordance with procedures set forth in 

29 CFR part 2570, subpart B (55 FR 

32836, 32847, August 10, 1990).