[Federal Register Volume 67, Number 60 (Thursday, March 28, 2002)]
[Notices]
[Pages 14979-14985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7518]


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DEPARTMENT OF LABOR

Pension and Welfare Benefits Administration

[Prohibited Transaction Exemption 2002-19; Exemption Application Number 
 D-11041]


Notice of Grant of Individual Exemption To Modify Prohibited 
Transaction Exemption 90-23 (PTE 90-23); Prohibited Transaction 
Exemption 90-31 (PTE 90-31) and Prohibited Transaction Exemption 90-33 
(PTE 90-33) Involving J.P. Morgan Chase & Company and Its Affiliates 
(the Applicants) Located in New York, NY

AGENCY: Pension and Welfare Benefits Administration, U.S. Department of 
Labor (the Department).

ACTION: Notice of grant of individual exemption to modify PTE 90-23; 
PTE 90-31; and PTE 90-33 (collectively, the Exemptions).

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SUMMARY: This document contains a notice of grant of a proposed 
individual administrative exemption which amends: PTE 90-23 (55 FR 
20545, May 17, 1990), an exemption which was granted to J.P. Morgan 
Securities, Inc.; PTE 90-31 (55 FR 23144, June 6, 1990), an exemption 
which was granted to Chase Manhattan Bank; and PTE 90-33 (55 FR 23151, 
June 6, 1990), an exemption which was granted to Chemical Banking 
Corporation.\1\ The Exemptions provide relief for the operation of 
certain asset pool investment trusts and the acquisition, holding and 
disposition by employee benefit plans (the Plans) of certificates or 
debt instruments that are issued by such trusts with respect to which 
one of the Applicants is the lead underwriter or a co-managing 
underwriter. This amendment permits the trustee of the trust to be an 
affiliate of the underwriter. The amendment affects the participants 
and beneficiaries of the Plans participating in such transactions and 
the fiduciaries with respect to such Plans.
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    \1\ The notice of proposed exemption for PTE 90-23 was published 
on February 20, 1990 at 55 FR 5906; the notice of proposed exemption 
for PTE 90-31 was published on February 21, 1990 at 55 FR 6074; and 
the notice of proposed exemption for PTE 90-33 was published on 
February 21, 1990 at 55 FR 6082.

FOR FURTHER INFORMATION CONTACT: Mr. Gary H. Lefkowitz, Office of 
Exemption Determinations, Pension and Welfare Benefits Administration, 
U.S. Department of Labor, telephone (202) 693-8546. (This is not a 
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toll-free number.)

SUPPLEMENTARY INFORMATION: On January 18, 2002, notice was published in 
the Federal Register (67 FR 2699) of the pendency before the Department 
of a proposed exemption to amend the Exemptions. The amendment, as 
proposed, would modify the Exemptions, each as subsequently amended by 
PTE 97-34 (62 FR 39021, July 21, 1997) and PTE 2000-58 (65 FR 67765, 
November 13, 2000) as set forth below:

    The first sentence of section II.A.(4) of the Exemptions is 
amended to read: ``The trustee is not an Affiliate of any member of 
the Restricted Group, other than an Underwriter.''

    The only written comment received by the Department on the proposed 
amendment was submitted by the Applicants, who requested that the 
Department clarify and restate the Exemptions as a single exemption. In 
response to that comment, the Department has determined to publish the 
final exemption as requested, which includes all of the amendments made 
by PTEs 97-34 and 2000-58.
    The Department also received an  e-mail message regarding the 
proposed amendment from an interested person who suggested that the 
same amendment be made to other exemptions previously granted by the 
Department for transactions involving asset-backed securities relating 
to credit card receivables [e.g., PTE 98-13, 63 FR 17020 (April 7, 
1998) regarding MBNA America Bank, N.N.; and PTE 98-14, 63 FR 17027 
(April 7, 1998) regarding Citibank (South Dakota), N.A., and 
Affiliates]. The Department has determined to separately consider a 
similar amendment to its prior individual exemptions for credit card 
securitizations in a separate proposal at a later date.
    Finally, the Department contacted The Bond Market Association 
(TBMA) to discuss extending similar relief to all of the prior 
individual exemptions granted for mortgage-backed and other asset-
backed securities (commonly known as the ``Underwriter Exemptions''). 
In this regard, the Department notes that all of the Underwriter 
Exemptions are essentially identical to the original three Underwriter 
Exemptions [i.e., PTE 89-88, 54 FR 42582 (October 17, 1989), regarding 
Goldman, Sachs & Co., et al.; PTE 89-89, 54 FR 42569 (October 17, 
1989), regarding Salomon Brothers, Inc.; and PTE 89-90, 54 FR 42597 
(October 17, 1989), regarding First Boston Corp.]. In addition, each of 
the Underwriter Exemptions was also subsequently amended by PTEs 97-34 
and 2000-58.\2\ In this regard, the Department anticipates a similar 
amendment to the remaining Underwriter Exemptions.
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    \2\ For a listing of such exemptions, see PTE 2000-58, footnote 
1, 65 FR at 67765 (November 13, 2000).
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Exemption

    Under section 408(a) of ERISA and section 4975(c)(2) of the Code 
and in accordance with the procedures set forth in 29 CFR Part 2570, 
subpart B (55 FR 32836, August 10, 1990), the Department amends the 
following individual exemption for J.P. Morgan Chase & Company and its 
Affiliates and restates the following individual Prohibited Transaction 
Exemptions (PTEs) as a single exemption: PTE 90-23 (55 FR 20545, May 
17, 1990), an exemption which was granted to J.P. Morgan Securities, 
Inc.; PTE 90-31 (55 FR 23144, June 6, 1990), an exemption which was 
granted to Chase Manhattan Bank; and PTE 90-33 (55 FR 23151, June 6, 
1990), an exemption which was granted to Chemical Banking Corporation.

I. Transactions

    A. 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

[[Page 14980]]

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.\3\
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    \3\ Section I.A. provides no relief from sections 406(a)(1)(E), 
406(a)(2) and 407 of the Act for any person rendering investment 
advice to an Excluded Plan within the meaning of section 
3(21)(A)(ii) of the Act, and regulation 29 CFR 2510.3-21(c).
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    B. The restrictions of sections 406(b)(1) and 406(b)(2) of the Act 
and the taxes imposed by sections 4975(a) and (b) of the Code, by 
reason of section 4975(c)(1)(E) of the Code, shall not apply to:
    (1) The direct or indirect sale, exchange or transfer of Securities 
in the initial issuance of Securities between the Sponsor or 
Underwriter and a plan when the person who has discretionary authority 
or renders investment advice with respect to the investment of plan 
assets in the Securities is (a) an Obligor with respect to 5 percent or 
less of the fair market value of obligations or receivables contained 
in the Issuer, or (b) an Affiliate of a person described in (a); if:
    (i) The plan is not an Excluded Plan;
    (ii) Solely in the case of an acquisition of Securities in 
connection with the initial issuance of the Securities, at least 50 
percent of each class of Securities in which plans have invested is 
acquired by persons independent of the members of the Restricted Group 
and at least 50 percent of the aggregate interest in the Issuer is 
acquired by persons independent of the Restricted Group;
    (iii) A plan's investment in each class of Securities does not 
exceed 25 percent of all of the Securities of that class outstanding at 
the time of the acquisition; and
    (iv) Immediately after the acquisition of the Securities, no more 
than 25 percent of the assets of a plan with respect to which the 
person has discretionary authority or renders investment advice are 
invested in Securities representing an interest in an Issuer containing 
assets sold or serviced by the same entity.\4\ For purposes of this 
paragraph (iv) only, an entity will not be considered to service assets 
contained in a Issuer if it is merely a Subservicer of that Issuer;
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    \4\ For purposes of this Underwriter Exemption, each plan 
participating in a commingled fund (such as a bank collective trust 
fund or insurance company pooled separate account) shall be 
considered to own the same proportionate undivided interest in each 
asset of the commingled fund as its proportionate interest in the 
total assets of the commingled fund as calculated on the most recent 
preceding valuation date of the fund.
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    (2) The direct or indirect acquisition or disposition of Securities 
by a plan in the secondary market for such Securities, provided that 
the conditions set forth in paragraphs (i), (iii) and (iv) of 
subsection I.B.(1) are met; and
    (3) The continued holding of Securities acquired by a plan pursuant 
to subsection I.B.(1) or (2).
    C. 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, 
effective January 1, 1999, 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;\5\ and
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    \5\ In the case of a private placement memorandum, such 
memorandum must contain substantially the same information that 
would be disclosed on a prospectus if the offering of the securities 
were made in a registered public offering under the Securities Act 
of 1933. In the Department's view, the private placement memorandum 
must contain sufficient information to permit plan fiduciaries to 
make informed investment decisions. For purposes of this exemption, 
references to ``prospectus'' include any related prospectus 
supplement thereto, pursuant to which Securities are offered to 
investors.
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    (3) The defeasance of a mortgage obligation and the substitution of 
a new mortgage obligation in a commercial mortgage-backed Designated 
Transaction meet the terms and conditions for such defeasance and 
substitution as are described in the prospectus or private placement 
memorandum for such Securities, which terms and conditions have been 
approved by a Rating Agency and does not result in the Securities 
receiving a lower credit rating from the Rating Agency than the current 
rating of the Securities.
    Notwithstanding the foregoing, section I.C. does not provide an 
exemption from the restrictions of section 406(b) of the Act or from 
the taxes imposed by reason of section 4975(c) of the Code for the 
receipt of a fee by a Servicer of the Issuer from a person other than 
the Trustee or Sponsor, unless such fee constitutes a Qualified 
Administrative Fee.
    D. The restrictions of sections 406(a) and 407(a) of the Act, and 
the taxes imposed by section 4975(a) and (b) of the Code by reason of 
section 4975(c)(1)(A) through (D) of the Code, shall not apply to any 
transactions to which those restrictions or taxes would otherwise apply 
merely because a person is deemed to be a party in interest or 
disqualified person (including a fiduciary) with respect to a plan by 
virtue of providing services to the plan (or by virtue of having a 
relationship to such service provider described in section 3(14)(F), 
(G), (H) or (I) of the Act or section 4975(e)(2)(F), (G), (H) or (I) of 
the Code), solely because of the plan's ownership of Securities.

II. General Conditions

    A. The relief provided under section I. is available only if the 
following conditions are met:
    (1) The acquisition of Securities by a plan is on terms (including 
the Security price) that are at least as favorable to the plan as they 
would be in an arm's-length transaction with an unrelated party;
    (2) The rights and interests evidenced by the Securities are not 
subordinated to the rights and interests evidenced by other Securities 
of the same Issuer, unless the Securities are issued in a Designated 
Transaction;
    (3) The Securities acquired by the plan have received a rating from 
a Rating Agency at the time of such acquisition that is in one of the 
three (or in the case of Designated Transactions, four) highest generic 
rating categories;
    (4) The Trustee is not an Affiliate of any member of the Restricted 
Group,

[[Page 14981]]

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) Effective for transactions occurring on or after January 1, 
1998, 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 later of August 23, 2000 or 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;
    (5) The sum of all payments made to and retained by the 
Underwriters in connection with the distribution or placement of 
Securities represents not more than Reasonable Compensation for 
underwriting or placing the Securities; the sum of all payments made to 
and retained by the Sponsor pursuant to the assignment of obligations 
(or interests therein) to the Issuer represents not more than the fair 
market value of such obligations (or interests); and the sum of all 
payments made to and retained by the Servicer represents not more than 
Reasonable Compensation for the Servicer's services under the Pooling 
and Servicing Agreement and reimbursement of the Servicer's reasonable 
expenses in connection therewith;
    (6) The plan investing in such Securities is an ``accredited 
investor'' as defined in Rule 501(a)(1) of Regulation D of the 
Securities and Exchange Commission under the Securities Act of 1933; 
and
    (7) In the event that the obligations used to fund an Issuer have 
not all been transferred to the Issuer on the Closing Date, additional 
obligations of the types specified in subsection III.B.(1) may be 
transferred to the Issuer during the Pre-Funding Period in exchange for 
amounts credited to the Pre-Funding Account, provided that:
    (a) The Pre-Funding Limit is not exceeded;
    (b) All such additional obligations meet the same terms and 
conditions for determining the eligibility of the original obligations 
used to create the Issuer (as described in the prospectus or private 
placement memorandum and/or Pooling and Servicing Agreement for such 
Securities), which terms and conditions have been approved by a Rating 
Agency. Notwithstanding the foregoing, the terms and conditions for 
determining the eligibility of an obligation may be changed if such 
changes receive prior approval either by a majority vote of the 
outstanding securityholders or by a Rating Agency;
    (c) The transfer of such additional obligations to the Issuer 
during the Pre-Funding Period does not result in the Securities 
receiving a lower credit rating from a Rating Agency upon termination 
of the Pre-Funding Period than the rating that was obtained at the time 
of the initial issuance of the Securities by the Issuer;
    (d) The weighted average annual percentage interest rate (the 
average interest rate) for all of the obligations held by the Issuer at 
the end of the Pre-Funding Period will not be more than 100 basis 
points lower than the average interest rate for the obligations which 
were transferred to the Issuer on the Closing Date;
    (e) In order to ensure that the characteristics of the receivables 
actually acquired during the Pre-Funding Period are substantially 
similar to those which were acquired as of the Closing Date, the 
characteristics of the additional obligations will either be monitored 
by a credit support provider or other insurance provider which is 
independent of the Sponsor or an independent accountant retained by the 
Sponsor will provide the Sponsor with a letter (with copies provided to 
the Rating Agency, the Underwriter and the Trustee) stating whether or 
not the characteristics of the additional obligations conform to the 
characteristics of such obligations described in the prospectus, 
private placement memorandum and/or Pooling and Servicing Agreement. In 
preparing such letter, the independent accountant will use the same 
type of procedures as were applicable to the obligations which were 
transferred as of the Closing Date;
    (f) The Pre-Funding Period shall be described in the prospectus or 
private placement memorandum provided to investing plans; and
    (g) The Trustee of the Trust (or any agent with which the Trustee 
contracts to provide Trust services) will be a substantial financial 
institution or trust company experienced in trust activities and 
familiar with its duties, responsibilities and liabilities as a 
fiduciary under the Act. The Trustee, as the legal owner of the 
obligations in the Trust or the holder of a security interest in the 
obligations held by the Issuer, will enforce all the rights created in 
favor of securityholders of the Issuer, including employee benefit 
plans subject to the Act;
    (8) In order to insure that the assets of the Issuer may not be 
reached by creditors of the Sponsor in the event of bankruptcy or other 
insolvency of the Sponsor:
    (a) The legal documents establishing the Issuer will contain:
    (i) Restrictions on the Issuer's ability to borrow money or issue 
debt other than in connection with the securitization;
    (ii) Restrictions on the Issuer merging with another entity, 
reorganizing, liquidating or selling assets (other than in connection 
with the securitization);
    (iii) Restrictions limiting the authorized activities of the Issuer 
to activities relating to the securitization;
    (iv) If the Issuer is not a Trust, provisions for the election of 
at least one independent director/partner/member whose affirmative 
consent is required before a voluntary bankruptcy petition can be filed 
by the Issuer; and
    (v) If the Issuer is not a Trust, requirements that each 
independent director/partner/member must be an individual that does not 
have a significant interest in, or other relationships with, the 
Sponsor or any of its Affiliates; and
    (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;

[[Page 14982]]

    (9) If a particular class of Securities held by any plan involves a 
Ratings Dependent or Non-Ratings Dependent Swap entered into by the 
Issuer, then each particular swap transaction relating to such 
Securities:
    (a) Shall be an Eligible Swap;
    (b) Shall be with an Eligible Swap Counterparty;
    (c) In the case of a Ratings Dependent Swap, shall provide that if 
the credit rating of the counterparty is withdrawn or reduced by any 
Rating Agency below a level specified by the Rating Agency, the 
Servicer (as agent for the Trustee) shall, within the period specified 
under the Pooling and Servicing Agreement:
    (i) Obtain a replacement swap agreement with an Eligible Swap 
Counterparty which is acceptable to the Rating Agency and the terms of 
which are substantially the same as the current swap agreement (at 
which time the earlier swap agreement shall terminate); or
    (ii) Cause the swap counterparty to establish any collateralization 
or other arrangement satisfactory to the Rating Agency such that the 
then current rating by the Rating Agency of the particular class of 
Securities will not be withdrawn or reduced.
    In the event that the Servicer fails to meet its obligations under 
this subsection II.A.(9)(c), plan securityholders will be notified in 
the immediately following Trustee's periodic report which is provided 
to securityholders, and sixty days after the receipt of such report, 
the exemptive relief provided under section I.C. will prospectively 
cease to be applicable to any class of Securities held by a plan which 
involves such Ratings Dependent Swap; provided that in no event will 
such plan securityholders be notified any later than the end of the 
second month that begins after the date on which such failure occurs.
    (d) In the case of a Non-Ratings Dependent Swap, shall provide 
that, if the credit rating of the counterparty is withdrawn or reduced 
below the lowest level specified in section III.GG., the Servicer (as 
agent for the Trustee) shall within a specified period after such 
rating withdrawal or reduction:
    (i) Obtain a replacement swap agreement with an Eligible Swap 
Counterparty, the terms of which are substantially the same as the 
current swap agreement (at which time the earlier swap agreement shall 
terminate); or
    (ii) Cause the swap counterparty to post collateral with the 
Trustee in an amount equal to all payments owed by the counterparty if 
the swap transaction were terminated; or
    (iii) Terminate the swap agreement in accordance with its terms; 
and
    (e) Shall not require the Issuer to make any termination payments 
to the counterparty (other than a currently scheduled payment under the 
swap agreement) except from Excess Spread or other amounts that would 
otherwise be payable to the Servicer or the Sponsor;
    (10) Any class of Securities, to which one or more swap agreements 
entered into by the Issuer applies, may be acquired or held in reliance 
upon this Underwriter Exemption only by Qualified Plan Investors; and
    (11) Prior to the issuance of any debt securities, a legal opinion 
is received which states that the debt holders have a perfected 
security interest in the Issuer's assets.
    B. Neither any Underwriter, Sponsor, Trustee, Servicer, Insurer or 
any Obligor, unless it or any of its Affiliates has discretionary 
authority or renders investment advice with respect to the plan assets 
used by a plan to acquire Securities, shall be denied the relief 
provided under section I., if the provision of subsection II.A.(6) is 
not satisfied with respect to acquisition or holding by a plan of such 
Securities, provided that (1) such condition is disclosed in the 
prospectus or private placement memorandum; and (2) in the case of a 
private placement of Securities, the Trustee obtains a representation 
from each initial purchaser which is a plan that it is in compliance 
with such condition, and obtains a covenant from each initial purchaser 
to the effect that, so long as such initial purchaser (or any 
transferee of such initial purchaser's Securities) is required to 
obtain from its transferee a representation regarding compliance with 
the Securities Act of 1933, any such transferees will be required to 
make a written representation regarding compliance with the condition 
set forth in subsection II.A.(6).

III. Definitions

    For purposes of this exemption:
    A. Security means:
    (1) A pass-through certificate or trust certificate that represents 
a beneficial ownership interest in the assets of an Issuer which is a 
Trust and which entitles the holder to payments of principal, interest 
and/or other payments made with respect to the assets of such Trust; or
    (2) A security which is denominated as a debt instrument that is 
issued by, and is an obligation of, an Issuer; with respect to which 
the Underwriter is either (i) the sole underwriter or the manager or 
co-manager of the underwriting syndicate, or (ii) a selling or 
placement agent.
    B. Issuer means an investment pool, the corpus or assets of which 
are held in trust (including a grantor or owner Trust) or whose assets 
are held by a partnership, special purpose corporation or limited 
liability company (which Issuer may be a Real Estate Mortgage 
Investment Conduit (REMIC) or a Financial Asset Securitization 
Investment Trust (FASIT) within the meaning of section 860D(a) or 
section 860L, respectively, of the Code); and the corpus or assets of 
which consist solely of:
    (1) (a) Secured consumer receivables that bear interest or are 
purchased at a discount (including, but not limited to, home equity 
loans and obligations secured by shares issued by a cooperative housing 
association); and/or
    (b) Secured credit instruments that bear interest or are purchased 
at a discount in transactions by or between business entities 
(including, but not limited to, Qualified Equipment Notes Secured by 
Leases); and/or
    (c) Obligations that bear interest or are purchased at a discount 
and which are secured by single-family residential, multi-family 
residential and/or commercial real property (including obligations 
secured by leasehold interests on residential or commercial real 
property); and/or
    (d) Obligations that bear interest or are purchased at a discount 
and which are secured by motor vehicles or equipment, or Qualified 
Motor Vehicle Leases; and/or
    (e) Guaranteed governmental mortgage pool certificates, as defined 
in 29 CFR 2510.3-101(i)(2) \6\; and/or
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    \6\ In 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).
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    (f) Fractional undivided interests in any of the obligations 
described in clauses (a)-(e) of this subsection B.(1).\7\
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    \7\ The Department wishes to take the opportunity to clarify its 
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.
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    Notwithstanding the foregoing, residential and home equity loan

[[Page 14983]]

receivables issued in Designated Transactions may be less than fully 
secured, provided that: (i) the rights and interests evidenced by the 
Securities issued in such Designated Transactions (as defined in 
section III.DD.) are not subordinated to the rights and interests 
evidenced by Securities of the same Issuer; (ii) such Securities 
acquired by the plan have received a rating from a Rating Agency at the 
time of such acquisition that is in one of the two highest generic 
rating categories; and (iii) any obligation included in the corpus or 
assets of the Issuer must be secured by collateral whose fair market 
value on the Closing Date of the Designated Transaction is at least 
equal to 80% of the sum of: (I) the outstanding principal balance due 
under the obligation which is held by the Issuer and (II) the 
outstanding principal balance(s) of any other obligation(s) of higher 
priority (whether or not held by the Issuer) which are secured by the 
same collateral.
    (2) Property which had secured any of the obligations described in 
subsection III.B.(1);
    (3) (a) Undistributed cash or temporary investments made therewith 
maturing no later than the next date on which distributions are made to 
securityholders; and/or
    (b) Cash or investments made therewith which are credited to an 
account to provide payments to securityholders pursuant to any Eligible 
Swap Agreement meeting the conditions of subsection II.A.(9) or 
pursuant to any Eligible Yield Supplement Agreement; and/or
    (c) Cash transferred to the Issuer on the Closing Date and 
permitted investments made therewith which:
    (i) Are credited to a Pre-Funding Account established to purchase 
additional obligations with respect to which the conditions set forth 
in paragraphs (a)-(g) of subsection II.A.(7) are met; and/or
    (ii) Are credited to a Capitalized Interest Account; and
    (iii) Are held by the Issuer for a period ending no later than the 
first distribution date to securityholders occurring after the end of 
the Pre-Funding Period.
    For purposes of this paragraph (c) of subsection III.B.(3), the 
term ``permitted investments'' means investments which: (i) are either: 
(x) direct obligations of, or obligations fully guaranteed as to timely 
payment of principal and interest by, the United States or any agency 
or instrumentality thereof, provided that such obligations are backed 
by the full faith and credit of the United States or (y) have been 
rated (or the Obligor has been rated) in one of the three highest 
generic rating categories by a Rating Agency; (ii) are described in the 
Pooling and Servicing Agreement; and (iii) are permitted by the Rating 
Agency.
    (4) Rights of the Trustee under the Pooling and Servicing 
Agreement, and rights under any insurance policies, third-party 
guarantees, contracts of suretyship, Eligible Yield Supplement 
Agreements, Eligible Swap Agreements meeting the conditions of 
subsection II.A.(9) or other credit support arrangements with respect 
to any obligations described in subsection III.B.(1).
    Notwithstanding the foregoing, the term ``Issuer'' does not include 
any investment pool unless: (i) the assets of the type described in 
paragraphs (a)-(f) of subsection III.B.(1) which are contained in the 
investment pool have been included in other investment pools, (ii) 
Securities evidencing interests in such other investment pools have 
been rated in one of the three (or in the case of Designated 
Transactions, four) highest generic rating categories by a Rating 
Agency for at least one year prior to the plan's acquisition of 
Securities pursuant to this Underwriter Exemption, and (iii) Securities 
evidencing interests in such other investment pools have been purchased 
by investors other than plans for at least one year prior to the plan's 
acquisition of Securities pursuant to this Underwriter Exemption.
    C. Underwriter means:
    (1) J.P. Morgan Chase & Company (the Applicant);
    (2) Any person directly or indirectly, through one or more 
intermediaries, controlling, controlled by or under common control with 
the Applicant; 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.
    D. Sponsor means the entity that organizes an Issuer by depositing 
obligations therein in exchange for Securities.
    E. Master Servicer means the entity that is a party to the Pooling 
and Servicing Agreement relating to assets of the Issuer and is fully 
responsible for servicing, directly or through Subservicers, the assets 
of the Issuer.
    F. Subservicer means an entity which, under the supervision of and 
on behalf of the Master Servicer, services loans contained in the 
Issuer, but is not a party to the Pooling and Servicing Agreement.
    G. ``Servicer'' means any entity which services loans contained in 
the Issuer, including the Master Servicer and any Subservicer.
    H. Trust means an Issuer which is a trust (including an owner 
trust, grantor trust or a REMIC or FASIT which is organized as a 
Trust).
    I. Trustee means the Trustee of any Trust which issues Securities 
and also includes an Indenture Trustee. ``Indenture Trustee'' means the 
Trustee appointed under the indenture pursuant to which the subject 
Securities are issued, the rights of holders of the Securities are set 
forth and a security interest in the Trust assets in favor of the 
holders of the Securities is created. The Trustee or the Indenture 
Trustee is also a party to or beneficiary of all the documents and 
instruments transferred to the Issuer, and as such, has both the 
authority to, and the responsibility for, enforcing all the rights 
created thereby in favor of holders of the Securities, including those 
rights arising in the event of default by the servicer.
    J. Insurer means the insurer or guarantor of, or provider of other 
credit 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

[[Page 14984]]

    (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., Duff & Phelps Credit Rating Co., Fitch ICBA, Inc. or any 
successors thereto.
    Y. Capitalized Interest Account means an Issuer account: (i) Which 
is established to compensate securityholders for shortfalls, if any, 
between investment earnings on the Pre-Funding Account and the interest 
rate payable under the Securities; and (ii) which meets the 
requirements of paragraph (c) of subsection III.B.(3).
    Z. Closing Date means the date the Issuer is formed, the Securities 
are first issued and the Issuer's assets (other than those additional 
obligations which are to be funded from the Pre-Funding Account 
pursuant to subsection II.A.(7)) are transferred to the Issuer.
    AA. Pre-Funding Account means an Issuer account: (i) Which is 
established to purchase additional obligations, which obligations meet 
the conditions set forth in paragraph (a)-(g) of subsection II.A.(7); 
and (ii) which meets the requirements of paragraph (c) of subsection 
III.B.(3).
    BB. Pre-Funding Limit means a percentage or ratio of the amount 
allocated to the Pre-Funding Account, as compared to the total 
principal amount of the Securities being offered, which is less than or 
equal to: (i) 40 percent, effective for transactions occurring on or 
after January 1, 1992, but prior to May 23, 1997; and (ii) 25 percent, 
for transactions occurring on or after May 23, 1997.
    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

[[Page 14985]]

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),\8\ as defined 
under Part V(a) of PTE 84-14, 49 FR 9494, 9506 (March 13, 1984);
---------------------------------------------------------------------------

    \8\ PTE 84-14 provides a class exemption for transactions 
between a party in interest with respect to an employee benefit plan 
and an investment fund (including either a single customer or pooled 
separate account) in which the plan has an interest, and which is 
managed by a QPAM, provided certain conditions are met. QPAMs (e.g., 
banks, insurance companies, registered investment advisers with 
total client assets under management in excess of $50 million) are 
considered to be experienced investment managers for plan investors 
that are aware of their fiduciary duties under ERISA.
---------------------------------------------------------------------------

    (2) An in-house asset manager (INHAM),\9\ as defined under Part 
IV(a) of PTE 96-23, 61 FR 15975, 15982 (April 10, 1996); or
---------------------------------------------------------------------------

    \9\ PTE 96-23 permits various transactions involving employee 
benefit plans whose assets are managed by an INHAM, an entity which 
is generally a subsidiary of an employer sponsoring the plan which 
is a registered investment adviser with management and control of 
total assets attributable to plans maintained by the employer and 
its affiliates which are in excess of $50 million.
---------------------------------------------------------------------------

    (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). Effective for transactions occurring on or after 
April 7, 1998, such an agreement or arrangement may involve a notional 
principal contract provided that:
    (1) It is denominated in U.S. dollars;
    (2) The Issuer receives on, or immediately prior to the respective 
payment date for the Securities covered by such agreement or 
arrangement, a fixed rate of interest or a floating rate of interest 
based on a publicly available index (e.g., LIBOR or COFI), with the 
Issuer receiving such payments on at least a quarterly basis;
    (3) It is not ``leveraged'' as described in subsection III.FF.(4);
    (4) It does not incorporate any provision which would cause a 
unilateral alteration in any provision described in subsections 
III.JJ.(1)-(3) without the consent of the Trustee;
    (5) It is entered into by the Issuer with an Eligible Swap 
Counterparty; and
    (6) It has a notional amount that does not exceed either: (i) The 
principal balance of the class of Securities to which such agreement or 
arrangement 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).
    The availability of this exemption is subject to the express 
condition that the material facts and representations contained in the 
application for exemption are true and complete and accurately describe 
all material terms of the transactions. In the case of continuing 
transactions, if any of the material facts or representations described 
in the application change, the exemption will cease to apply as of the 
date of such change. In the event of any such change, an application 
for a new exemption must be made to the Department.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this individual exemption 
to modify the Exemptions, refer to the notice of proposed individual 
exemption to modify the Exemptions that was published on January 18, 
2002 at 67 FR 2699.

EFFECTIVE DATE: This exemption is effective as of March 13, 2002.

    Signed at Washington, DC, this 25th day of March, 2002.
Ivan L. Strasfeld,
Director of Exemption, Determinations, Pension and Welfare Benefits 
Administration, U.S. Department of Labor.
[FR Doc. 02-7518 Filed 3-27-02; 8:45 am]
BILLING CODE 4510-29-P