(a) Definitions. For purposes of this section, the following definition
shall apply:
U.S. person means:
(i) Any of the following:
(A) Any natural person resident in the United
States;
(B) Any partnership,
corporation, limited liability company, or other organization or entity
organized or incorporated under the laws of any State or of the United
States;
(C) Any estate of which
any executor or administrator is a U.S. person (as defined under any
other clause of this definition);
(D) Any trust of which any trustee is a U.S.
person (as defined under any other clause of this definition);
(E) Any agency or branch
of a foreign entity located in the United States;
(F) Any non-discretionary account or similar
account (other than an estate or trust) held by a dealer or other
fiduciary for the benefit or account of a U.S. person (as defined
under any other clause of this definition);
(G) Any discretionary account or similar account
(other than an estate or trust) held by a dealer or other fiduciary
organized, incorporated, or (if an individual) resident in the United
States; and
(H) Any partnership,
corporation, limited liability company, or other organization or entity
if:
(1) Organized or incorporated
under the laws of any foreign jurisdiction; and
(2) Formed by a U.S. person (as defined
under any other clause of this definition) principally for the purpose
of investing in securities not registered under the Act; and
(ii)
“U.S. person(s)” does not include:
(A) Any discretionary account
or similar account (other than an estate or trust) held for the benefit
or account of a person not constituting a U.S. person (as defined
in paragraph (i) of this section) by a dealer or other professional
fiduciary organized, incorporated, or (if an individual) resident
in the United States;
(B)
Any estate of which any professional fiduciary acting as executor
or administrator is a U.S. person (as defined in paragraph (i) of
this section) if:
(1) An executor or administrator of the estate who is not
a U.S. person (as defined in paragraph (i) of this section) has sole
or shared investment discretion with respect to the assets of the
estate; and
(2) The estate is governed by foreign law;
(C) Any trust of which any professional
fiduciary acting as trustee is a U.S. person (as defined in paragraph
(i) of this section), if a trustee who is not a U.S. person (as defined
in paragraph (i) of this section) has sole or shared investment discretion
with respect to the trust assets, and no beneficiary of the trust
(and no settlor if the trust is revocable) is a U.S. person (as defined
in paragraph (i) of this section);
(D) An employee benefit plan established and
administered in accordance with the law of a country other than the
United States and customary practices and documentation of such country;
(E) Any agency or branch
of a U.S. person (as defined in paragraph (i) of this section) located
outside the United States if:
(1) The agency or branch operates for valid business reasons;
and
(2) The agency
or branch is engaged in the business of insurance or banking and is
subject to substantive insurance or banking regulation, respectively,
in the jurisdiction where located;
(F) The International Monetary Fund, the International
Bank for Reconstruction and Development, the Inter-American Development
Bank, the Asian Development Bank, the African Development Bank, the
United Nations, and their agencies, affiliates and pension plans,
and any other similar international organizations, their agencies,
affiliates and pension plans.
(b) In general. This
part shall not apply to a securitization transaction if all the following
conditions are met:
(1) The securitization transaction is not
required to be and is not registered under the Securities Act of 1933
(15 U.S.C. 77a et seq.);
(2) No more than 10 percent of the dollar
value (or equivalent amount in the currency in which the ABS interests
are issued, as applicable) of all classes of ABS interests in the securitization
transaction are sold or transferred to U.S. persons or for the account
or benefit of U.S. persons;
(3) Neither the sponsor of the securitization
transaction nor the issuing entity is:
(i) Chartered, incorporated,
or organized under the laws of the United States or any State;
(ii) An unincorporated
branch or office (wherever located) of an entity chartered, incorporated,
or organized under the laws of the United States or any State; or
(iii) An unincorporated
branch or office located in the United States or any State of an entity
that is chartered, incorporated, or organized under the laws of a
jurisdiction other than the United States or any State; and
(4) If the sponsor or issuing
entity is chartered, incorporated, or organized under the laws of
a jurisdiction other than the United States or any State, no more
than 25 percent (as determined based on unpaid principal balance)
of the assets that collateralize the ABS interests sold in the securitization
transaction were acquired by the sponsor or issuing entity, directly
or indirectly, from:
(i) A majority-owned affiliate of the
sponsor or issuing entity that is chartered, incorporated, or organized
under the laws of the United States or any State; or
(ii) An unincorporated branch or office
of the sponsor or issuing entity that is located in the United States
or any State.
(c) Evasions prohibited. In view of the objective
of these rules and the policies underlying section 15G of the Exchange
Act, the safe harbor described in paragraph (b) of this section is
not available with respect to any transaction or series of transactions
that, although in technical compliance with paragraphs (a) and (b)
of this section, is part of a plan or scheme to evade the requirements
of section 15G and this Part. In such cases, compliance with section
15G and this part is required.
