Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Notices 1925

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 exclusive benefit of the

employees of the employer maintaining

the plan and their beneficiaries;

(2) Before an exemption may be

granted under section 408(a) of the Act

and/or section 4975(c)(2) of the code,

the Department must find that the

exemption is administratively feasible,

in the interests of the plan and of its

participants and beneficiaries and

protective of the rights of participants

and beneficiaries of the plan;

(3) The proposed exemptions, if

granted, will be supplemental to, and

not in derogation of, any other

provisions of the Act and/or the Code,

including statutory or administrative

exemptions and transitional 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

(4) The proposed exemptions, if

granted, will be subject to the express

condition that the material facts and

representations contained in each

application are true and complete, and

that each application accurately

describes all material terms of the

transaction which is the subject of the

exemption.

Signed at Washington, DC, this 9th day of

January, 1997.

Ivan Strasfeld,

Director of Exemption Determinations,

Pension and Welfare Benefits Administration,

U.S. Department of Labor.

[FR Doc. 97–865 Filed 1–13–97; 8:45 am]

BILLING CODE 4510–29–M

[Prohibited Transaction Exemption 97–01;

Exemption Application No. D–10143, et al.]

Grant of Individual Exemptions; Univar

Corporation UniSaver Tax

AGENCY: Pension and Welfare Benefits

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 (the Act) and/or

the Internal Revenue Code of 1986 (the

Code).

Notices were published in the Federal

Register of the pendency before the

Department of proposals to grant such

exemptions. The notices set forth a

summary of facts and representations

contained in each application for

exemption and referred interested

persons to the respective applications

for a complete statement of the facts and

representations. The applications have

been available for public inspection at

the Department in Washington, D.C. The

notices also invited interested persons

to submit comments on the requested

exemptions to the Department. In

addition the notices stated that any

interested person might submit a

written request that a public hearing be

held (where appropriate). The

applicants have represented that they

have complied with the requirements of

the notification to interested persons.

No public comments and no requests for

a hearing, unless otherwise stated, were

received by the Department.

The notices of proposed exemption

were issued and the exemptions are

being granted solely by the Department

because, effective December 31, 1978,

section 102 of Reorganization Plan No.

4 of 1978 (43 FR 47713, October 17,

1978) 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 exemptions are

administratively feasible;

(b) They are in the interests of the

plans and their participants and

beneficiaries; and

(c) They are protective of the rights of

the participants and beneficiaries of the

plans.

Univar Corporation UniSaver Tax

Savings Investment Plan (the Plan)

Located In Kirkland, Washington

[Prohibited Transaction Exemption 97–01;

Exemption Application No. D–10143]

Exemption

The restrictions of sections 406(a) 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) through (E) of

the Code, shall not apply to the

extension of credit in the form of

guarantees and loans of funds (the

Loans), not to exceed $1,466,785.38, to

the Plan by Univar Corporation (the

Employer), the sponsor of the Plan, or

it successors, with respect to

Guaranteed Investment Contract No.

62127 (the GIC) issued by Confederation

Life Insurance Company of Canada

(Confederation), and the repayment of

the Loans by the Plan to the Employer,

or its successors, provided the following

conditions are satisfied: (a) All terms

and conditions of the transactions are

no less favorable to the Plan than those

the Plan could receive in arm’s length

transactions with unrelated parties; (b)

No interest payments or other expenses

will be incurred by the Plan with

respect to the transactions; (c)

Repayment of the Loans will be made

from proceeds realized from the GIC

(the GIC Proceeds) as paid to the Plan

by Confederation, its successors, or any

other third party, and made only if the

repayments do not interfere with the

liquidity needs of the Plan for payment

of benefits, transfers of investments,

hardship withdrawals, or loans as

determined by BZW Barclays Global

Investors, N.A., the Plan trustee; (d)

Repayment of the Loans will be waived

by the Employer and its successors to

the extent the Loans exceed the GIC

Proceeds; and (e) All unpaid principal

and interest that was due under the GIC

on August 12, 1994, minus any Loans

from the Employer and its successors,

and/or payments received under the GIC

after August 12, 1994, will be

completely paid by January 1, 2000, by

a Loan to the Plan from the Employer

or its successors.

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

November 6, 1996, at 61 FR 57467.

FOR FURTHER INFORMATION CONTACT: Mr.

C.E. Beaver of the Department,

telephone (202) 219–8881. (This is not

a toll-free number.)

Wayne Obstetrical Group, P.A. Money

Purchase Retirement Plan (the Wayne

Plan); Pediatric Professional Associates,

P.A. Profit Sharing Plan (the Pediatric

Plan); Physicians for Women, P.A.

Profit-Sharing Plan and Trust (the

Physicians Plan; collectively, the Plans)

Located in Wayne, New Jersey

[Prohibited Transaction Exemption 97–02;

Exemption Application Nos. D–10262, D–

10263, and D–10264]

Exemption

The restrictions of sections 406(a),

406(b)(1) and (b)(2) of the Act and the
1926 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Notices

sanctions resulting from the application

of section 4975 of the Code, by reason

of section 4975(c)(1)(A) through (E) of

the Code, shall not apply to the loans

totalling $530,000 by the Plans to

S & D Associates (S & D), provided that

the following conditions are satisfied:

(a) The terms and conditions of the

loans are at least as favorable to the

Plans as those the Plans could obtain in

comparable arm’s length transactions

with unrelated parties;

(b) At all times, the loans are secured

by a first mortgage on certain real

property (the Property), which is duly

recorded under New Jersey State law;

(c) At all times, the fair market value

of the Property, as established by a

qualified, independent appraiser, equals

at least 150% of the total outstanding

balances of the loans;

(d) At all times, no more than 25% of

the assets of each lending Plan are

invested in the loans;

(e) A qualified, independent fiduciary

has determined that the loans are in the

best interests of the Plans; and

(f) At all times, the independent

fiduciary enforces compliance with the

terms and conditions of the loans and of

the exemption, including foreclosure on

the Property in the event of default.

EFFECTIVE DATE: The exemption is

effective as of January 1, 1997.

In response to a comment from the

applicants, the Department has agreed

to modify the Summary of Facts and

Representations (the Summary) in the

notice of proposed exemption to reflect

a modification to the terms of the loans.

Accordingly, on page 55323 of such

notice, the first subparagraph in

Paragraph 4 of the Summary should be

corrected to read as follows:

The loans, as evidenced by promissory

notes, will each provide for a term of 15 years

and a fixed interest rate of 11 percent per

annum for the first 10 years. Thereafter, the

interest rate will become adjustable annually,

based upon the greater of: (a) 11 percent, or

(b) three percent above the five-year Treasury

note yield as published in The Wall Street

Journal, determined as of the 10th

anniversary of the loans and each subsequent

anniversary thereof. The promissory notes

will require S & D Associates to make

monthly payments of principal and interest

on the loans, to be fully amortized over the

15-year term. The Plans will pay no fees nor

other expenses relating to the loans.

A ‘‘Supplemental Statement’’ describing

the modified loan terms was provided to

interested persons, along with a copy of

the notice of proposed exemption as

published in the Federal Register. Due

to a delay in providing notice to

interested persons, the comment period

was extended until December 26, 1996.

In addition, the applicants wished to

note that the last sentence in the first

subparagraph of Paragraph of 1 of the

Summary should be corrected to read as

follows:

The trustees of the Wayne Plan are the four

owners, above [i.e., revised to include Steven

Domnitz].

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

October 25, 1996 at 61 FR 55322.

FOR FURTHER INFORMATION CONTACT: Ms.

Karin Weng of the Department,

telephone (202) 219–8881. (This is not

a toll-free number.)

National Baptist Publishing Board

Pension Plan (the Plan) Located in

Nashville, TN

[Prohibited Transaction Exemption 97–03;

Exemption Application No. D–10283]

Exemption

The restrictions of sections 406(a) 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 sections 4975(c)(1) (A) through (E) of

the Code shall not apply to the cash sale

(the Sale) of common stock of Citizens

Savings Bank and Trust Company (the

Stock) located in Nashville, Tennessee,

by the Plan to AmeriStar Investments

and Trust, a division of First American

National Bank, Trustee of the Plan and

party in interest with respect to the

Plan; provided that (1) the Sale is a onetime transaction for cash; (2) the Plan

experiences no loss nor incurs any

expenses from the Sale; and (3) the Plan

receives as consideration from the Sale

the greater of the following amounts: (a)

the fair market value of the Stock as of

the date of the Sale plus interest at 6%

for the period March 31, 1993 through

the date the Stock is sold by the Plan;

or (b) the total cost of the investment,

$100,000, plus interest at 6% for the

period March 31, 1993 through the date

the Stock is sold by the Plan.

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

October 25, 1996 at 61 FR 55324.

FOR FURTHER INFORMATION CONTACT: Mr.

Gary H. Lefkowitz of the Department,

telephone (202) 219–8881. (This is not

a toll-free number.)

Summit Sheet Metal, Inc. Defined

Benefit Pension Plan (the Plan) Located

In Anaheim, California

[Prohibited Transaction Exemption 97–04;

Exemption Application No. D–10330]

Exemption

The restrictions of sections 406(a) 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) through (E) of

the Code, shall not apply to the cash

sale (the Sale) by the Plan of certain real

property (the Property) to Messrs.

Milton J. Chasin, Donald E. Hanson, and

Gale N. Searing, parties in interest with

respect to the Plan; provided that the

following conditions are satisfied: (a)

The Sale is a one-time transaction for a

lump sum cash payment; (b) the

purchase price is the fair market value

of the Property as determined on the

date of the Sale by a qualified,

independent appraiser; and (c) the Plan

will incur no commissions or any other

expenses from the Sale.

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

November 25, 1996, at 61 FR 59914.

FOR FURTHER INFORMATION CONTACT: Mr.

C.E. Beaver of the Department,

telephone (202) 219–8881. (This is not

a toll-free number.)

SouthTrust Securities, Inc. (ST) Located

in Birmingham, Alabama

[Prohibited Transaction Exemption 97–05;

Exemption Application No. D–10376]

Exemption

I. Transactions

A. Effective October 25, 1996, 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 the

following transactions involving trusts

and certificates evidencing interests

therein:

(1) The direct or indirect sale,

exchange or transfer of certificates in the

initial issuance of certificates between

the sponsor or underwriter and an

employee benefit plan when the

sponsor, servicer, trustee or insurer of a

trust, the underwriter of the certificates

representing an interest in the trust, or

an obligor is a party in interest with

respect to such plan;

(2) The direct or indirect acquisition

or disposition of certificates by a plan in

the secondary market for such

certificates; and
Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Notices 1927

1Section I.A. provides no relief from sections

406(a)(1)(E), 406(a)(2) and 407 for any person

rendering investment advice to an Excluded Plan

within the meaning of section 3(21)(A)(ii) and

regulation 29 CFR 2510.3–21(c).

2For purposes of this 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 certificates 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.

(3) The continued holding of

certificates 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 for the acquisition or

holding of a certificate 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 October 25, 1996, the

restrictions of sections 406(b)(1) and

406(b)(2) of the Act and the taxes

imposed by section 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 certificates in the

initial issuance of certificates 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 certificates is (a) an obligor

with respect to 5 percent or less of the

fair market value of obligations or

receivables contained in the trust, 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 certificates in connection with the

initial issuance of the certificates, at

least 50 percent of each class of

certificates 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 trust is

acquired by persons independent of the

Restricted Group;

(iii) a plan’s investment in each class

of certificates does not exceed 25

percent of all of the certificates of that

class outstanding at the time of the

acquisition; and

(iv) immediately after the acquisition

of the certificates, 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

certificates representing an interest in a

trust containing assets sold or serviced

by the same entity.2 For purposes of this

paragraph B.(1)(iv) only, an entity will

not be considered to service assets

contained in a trust if it is merely a

subservicer of that trust;

(2) The direct or indirect acquisition

or disposition of certificates by a plan in

the secondary market for such

certificates, provided that the conditions

set forth in paragraphs B.(1) (i), (iii) and

(iv) are met; and

(3) The continued holding of

certificates acquired by a plan pursuant

to subsection I.B. (1) or (2).

C. Effective October 25, 1996, 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 a trust,

provided:

(1) such transactions are carried out in

accordance with the terms of a binding

pooling and servicing arrangement; and

(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 certificates issued by the

trust.3

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 trust

from a person other than the trustee or

sponsor, unless such fee constitutes a

‘‘qualified administrative fee’’ as

defined in section III.S.

D. Effective October 25, 1996, 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 sections 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

certificates.

II. General Conditions

A. The relief provided under Part I is

available only if the following

conditions are met:

(1) The acquisition of certificates by a

plan is on terms (including the

certificate 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 certificates are not subordinated

to the rights and interests evidenced by

other certificates of the same trust;

(3) The certificates acquired by the

plan have received a rating at the time

of such acquisition that is in one of the

three highest generic rating categories

from either Standard & Poor’s

Structured Rating Group (S&P’s),

Moody’s Investors Service, Inc.

(Moody’s), Duff & Phelps Credit Rating

Co. (D & P) or Fitch Investors Service,

L.P. (Fitch);

(4) The trustee is not an affiliate of

any member of the Restricted Group.

However, 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;

(5) The sum of all payments made to

and retained by the underwriters in

connection with the distribution or

placement of certificates represents not

more than reasonable compensation for

underwriting or placing the certificates;

the sum of all payments made to and

retained by the sponsor pursuant to the

assignment of obligations (or interests

therein) to the trust 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; and

(6) The plan investing in such

certificates 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.

B. Neither any underwriter, sponsor,

trustee, servicer, insurer, nor any

obligor, unless it or any of its affiliates

has discretionary authority or renders
1928 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Notices

4 It is the Department’s view that the definition of

‘‘trust’’ contained in III.B. includes a two-tier

structure under which certificates issued by the first

trust, which contains a pool of receivables

described above, are transferred to a second trust

which issues securities that are sold to plans.

However, the Department is of the further view that,

since the exemption provides relief for the direct or

indirect acquisition or disposition of certificates

that are not subordinated, no relief would be

available if the certificates held by the second trust

were subordinated to the rights and interests

evidenced by other certificates issued by the first

trust.

investment advice with respect to the

plan assets used by a plan to acquire

certificates, shall be denied the relief

provided under Part I, if the provision

of subsection II.A.(6) above is not

satisfied with respect to acquisition or

holding by a plan of such certificates,

provided that (1) such condition is

disclosed in the prospectus or private

placement memorandum; and (2) in the

case of a private placement of

certificates, 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 certificates) 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) above.

III. Definitions

For purposes of this exemption:

A. ‘‘Certificate’’ means:

(1) a certificate—

(a) that represents a beneficial

ownership interest in the assets of a

trust; and

(b) that entitles the holder to passthrough payments of principal, interest,

and/or other payments made with

respect to the assets of such trust; or

(2) a certificate denominated as a debt

instrument—

(a) that represents an interest in a Real

Estate Mortgage Investment Conduit

(REMIC) within the meaning of section

860D(a) of the Internal Revenue Code of

1986; and

(b) that is issued by and is an

obligation of a trust;

with respect to certificates defined in (1)

and (2) above for which ST or any of its

affiliates is either (i) the sole

underwriter or the manager or comanager of the underwriting syndicate,

or (ii) a selling or placement agent.

For purposes of this exemption,

references to ‘‘certificates representing

an interest in a trust’’ include

certificates denominated as debt which

are issued by a trust.

B. ‘‘Trust’’ means an investment pool,

the corpus of which is held in trust and

consists solely of:

(1) either—

(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);

(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, as defined in section

III.T);

(c) obligations that bear interest or are

purchased at a discount and which are

secured by single-family residential,

multi-family residential and commercial

real property (including obligations

secured by leasehold interests on

commercial real property);

(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 (as defined in section III.U);

(e) ‘‘guaranteed governmental

mortgage pool certificates,’’ as defined

in 29 CFR 2510.3–101(i)(2);

(f) fractional undivided interests in

any of the obligations described in

clauses (a)–(e) of this section B.(1); 4

(2) property which had secured any of

the obligations described in subsection

B.(1);

(3) undistributed cash or temporary

investments made therewith maturing

no later than the next date on which

distributions are to made to

certificateholders; and

(4) rights of the trustee under the

pooling and servicing agreement, and

rights under any insurance policies,

third-party guarantees, contracts of

suretyship and other credit support

arrangements with respect to any

obligations described in subsection

B.(1).

Notwithstanding the foregoing, the term

‘‘trust’’ does not include any investment

pool unless: (i) The investment pool

consists only of assets of the type which

have been included in other investment

pools, (ii) certificates evidencing

interests in such other investment pools

have been rated in one of the three

highest generic rating categories by

S&P’s, Moody’s, D & P, or Fitch for at

least one year prior to the plan’s

acquisition of certificates pursuant to

this exemption, and (iii) certificates

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 certificates pursuant to this

exemption.

C. ‘‘Underwriter’’ means:

(1) ST;

(2) any person directly or indirectly,

through one or more intermediaries,

controlling, controlled by or under

common control with ST; or

(3) any member of an underwriting

syndicate or selling group of which ST

or a person described in (2) is a manager

or co-manager with respect to the

certificates.

D. ‘‘Sponsor’’ means the entity that

organizes a trust by depositing

obligations therein in exchange for

certificates.

E. ‘‘Master Servicer’’ means the entity

that is a party to the pooling and

servicing agreement relating to trust

assets and is fully responsible for

servicing, directly or through

subservicers, the assets of the trust.

F. ‘‘Subservicer’’ means an entity

which, under the supervision of and on

behalf of the master servicer, services

loans contained in the trust, but is not

a party to the pooling and servicing

agreement.

G. ‘‘Servicer’’ means any entity which

services loans contained in the trust,

including the master servicer and any

subservicer.

H. ‘‘Trustee’’ means the trustee of the

trust, and in the case of certificates

which are denominated as debt

instruments, also means the trustee of

the indenture trust.

I. ‘‘Insurer’’ means the insurer or

guarantor of, or provider of other credit

support for, a trust. Notwithstanding the

foregoing, a person is not an insurer

solely because it holds securities

representing an interest in a trust which

are of a class subordinated to certificates

representing an interest in the same

trust.

J. ‘‘Obligor’’ means any person, other

than the insurer, that is obligated to

make payments with respect to any

obligation or receivable included in the

trust. Where a trust 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 trust, or subject to any lease

securing an obligation included in the

trust.

K. ‘‘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.

L. ‘‘Restricted Group’’ with respect to

a class of certificates means:

(1) each underwriter;
Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Notices 1929

5Since Mr. Bolton is the sole owner of Skana and

the only participant in the Plan, there is no

jurisdiction under Title I of the Act pursuant to 29

CFR 2510.3–3(b). However, there is jurisdiction

under Title II of the Act pursuant to section 4975

of the Code.

(2) each insurer;

(3) the sponsor;

(4) the trustee;

(5) each servicer;

(6) any obligor with respect to

obligations or receivables included in

the trust constituting more than 5

percent of the aggregate unamortized

principal balance of the assets in the

trust, determined on the date of the

initial issuance of certificates by the

trust; or

(7) any affiliate of a person described

in (1)–(6) above.

M. ‘‘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.

N. ‘‘Control’’ means the power to

exercise a controlling influence over the

management or policies of a person

other than an individual.

O. 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.

P. ‘‘Sale’’ includes the entrance into a

forward delivery commitment (as

defined in section Q below), 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 exemption applicable

to sales are met.

Q. ‘‘Forward delivery commitment’’

means a contract for the purchase or

sale of one or more certificates to be

delivered at an agreed future settlement

date. The term includes both mandatory

contracts (which contemplate obligatory

delivery and acceptance of the

certificates) and optional contracts

(which give one party the right but not

the obligation to deliver certificates to,

or demand delivery of certificates from,

the other party).

R. ‘‘Reasonable compensation’’ has

the same meaning as that term is

defined in 29 CFR 2550.408c–2.

S. ‘‘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 (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

trust will not be reduced by the amount

of any such fee waived by the servicer.

T. ‘‘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 trust’s

security interest in the equipment is at

least as protective of the rights of the

trust as would be the case if the

equipment note were secured only by

the equipment and not the lease.

U. ‘‘Qualified Motor Vehicle Lease’’

means a lease of a motor vehicle where:

(1) the trust holds a security interest

in the lease;

(2) the trust holds a security interest

in the leased motor vehicle; and

(3) the trust’s security interest in the

leased motor vehicle is at least as

protective of the trust’s rights as would

be the case if the trust consisted of

motor vehicle installment loan

contracts.

V. ‘‘Pooling and Servicing

Agreement’’ means the agreement or

agreements among a sponsor, a servicer

and the trustee establishing a trust. In

the case of certificates which are

denominated as debt instruments,

‘‘Pooling and Servicing Agreement’’ also

includes the indenture entered into by

the trustee of the trust issuing such

certificates and the indenture trustee.

W. ‘‘ST’’ means SouthTrust

Securities, Inc. and its affiliates.

The Department notes that this

exemption is included within the

meaning of the term ‘‘Underwriter

Exemption’’ as it is defined in section

V(h) of Prohibited Transaction

Exemption 95–60 (60 FR 35925, July 12,

1995), the Class Exemption for Certain

Transactions Involving Insurance

Company General Accounts at 35932.

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

December 3, 1996 at 61 FR 64164.

FOR FURTHER INFORMATION CONTACT: Gary

Lefkowitz of the Department, telephone

(202) 219–8881. (This is not a toll-free

number.)

Skana Enterprises, Inc. Defined Benefit

Pension Plan (the Plan) Located in

Kodiak, Alaska

[Prohibited Transaction Exemption 97–06;

Exemption Application No. D–10342]

Exemption

The sanctions resulting from the

application of section 4975 of the Code,

by reason of section 4975(c)(1)(A)

through (E) of the Code, shall not apply

to: (1) the loan (the Loan) of $157,500

by the Plan to Skana Enterprises, Inc.

(Skana), the Plan’s sponsor and a

disqualified person with respect to the

Plan, and (2) the personal guarantee of

the Loan by Mr. Ralph Bolton (Mr.

Bolton), a disqualified person with

respect to the Plan, provided the

following conditions are satisfied: (a)

the terms of the Loan are at least as

favorable to the Plan as those obtainable

in an arm’s-length transaction with an

unrelated party; (b) the Loan does not

exceed 25% of the assets of the Plan; (c)

the Loan is secured by a first deed of

trust on real property (the Property)

which has been appraised by a qualified

independent appraiser to have a fair

market value not less than 150% of the

amount of the Loan; (d) the fair market

value of the Property remains at least

equal to 150% of the outstanding

balance of the Loan throughout the

duration of the Loan; (e) the Plan’s

independent fiduciary has determined

that the Loan is appropriate for, in the

best interest of, and protective of the

Plan; and (f) the Plan’s independent

fiduciary will monitor compliance with

the terms of the Loan and conditions of

the exemption throughout the duration

of the transaction, taking any action

necessary to safeguard the Plan’s

interest, including foreclosure on the

Property in the event of default.5

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

November 25, 1996 at 61 FR 59915.

FOR FURTHER INFORMATION CONTACT: Gary

H. Lefkowitz of the Department,
1930 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Notices

telephone (202) 219–8881. (This is not

a toll-free number.)

Wayne Obstetrical Group, P.A. Money

Purchase Retirement Plan (the Wayne

Plan); Pediatric Professional Associates,

P.A. Profit Sharing Plan (the Pediatric

Plan); Physicians for Women, P.A.

Profit-Sharing Plan and Trust (the

Physicians Plan; collectively, the Plans)

Located in Wayne, New Jersey

[Prohibited Transaction Exemption 97–07;

Exemption Application Nos. D–10262, D–

10263, and D–10264]

Exemption

The restrictions of sections 406(a),

406 (b)(1) and (b)(2) of the Act and the

sanctions resulting from the application

of section 4975 of the Code, by reason

of section 4975(c)(1) (A) through (E) of

the Code, shall not apply to the loans

totalling $530,000 by the Plans to S &

D Associates (S & D), provided that the

following conditions are satisfied:

(a) The terms and conditions of the

loans are at least as favorable to the

Plans as those the Plans could obtain in

comparable arm’s length transactions

with unrelated parties;

(b) At all times, the loans are secured

by a first mortgage on certain real

property (the Property), which is duly

recorded under New Jersey State law;

(c) At all times, the fair market value

of the Property, as established by a

qualified, independent appraiser, equals

at least 150% of the total outstanding

balances of the loans;

(d) At all times, no more than 25% of

the assets of each lending Plan are

invested in the loans;

(e) A qualified, independent fiduciary

has determined that the loans are in the

best interests of the Plans; and

(f) At all times, the independent

fiduciary enforces compliance with the

terms and conditions of the loans and of

the exemption, including foreclosure on

the Property in the event of default.

EFFECTIVE DATE: The exemption is

effective as of January 1, 1997.

In response to a comment from the

applicants, the Department has agreed

to modify the Summary of Facts and

Representations (the Summary) in the

notice of proposed exemption to reflect

a modification to the terms of the loans.

Accordingly, on page 55323 of such

notice, the first subparagraph in

Paragraph 4 of the Summary should be

corrected to read as follows:

The loans, as evidenced by promissory

notes, will each provide for a term of 15 years

and a fixed interest rate of 11 percent per

annum for the first 10 years. Thereafter, the

interest rate will become adjustable annually,

based upon the greater of: (a) 11 percent, or

(b) three percent above the five-year Treasury

note yield as published in The Wall Street

Journal, determined as of the 10th

anniversary of the loans and each subsequent

anniversary thereof. The promissory notes

will require S & D Associates to make

monthly payments of principal and interest

on the loans, to be fully amortized over the

15-year term. The Plans will pay no fees nor

other expenses relating to the loans.

A ‘‘Supplemental Statement’’ describing

the modified loan terms was provided to

interested persons, along with a copy of

the notice of proposed exemption as

published in the Federal Register. Due

to a delay in providing notice to

interested persons, the comment period

was extended until December 26, 1996.

In addition, the applicants wished to

note that the last sentence in the first

subparagraph of Paragraph of 1 of the

Summary should be corrected to read as

follows:

The trustees of the Wayne Plan are the four

owners, above [i.e., revised to include Steven

Domnitz].

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

October 25, 1996 at 61 FR 55322.

FOR FURTHER INFORMATION CONTACT: Ms.

Karin Weng of the Department,

telephone (202) 219–8881. (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 exemptions

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) These exemptions are

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 these

exemptions is subject to the express

condition that the material facts and

representations contained in each

application accurately describes all

material terms of the transaction which

is the subject of the exemption.

Signed at Washington, D.C., this 9th day of

January, 1997.

Ivan Strasfeld,

Director of Exemption Determinations,

Pension and Welfare Benefits Administration,

U.S. Department of Labor.

[FR Doc. 97–864 Filed 1–13–97; 8:45 am]

BILLING CODE 4510–29–P

NUCLEAR REGULATORY

COMMISSION

Sunshine Act Meeting

AGENCY HOLDING THE MEETING: Nuclear

Regulatory Commission.

DATE: Weeks of January 13, 20, 27 and

February 3, 1997.

PLACE: Commissioners’ Conference

Room, 11555 Rockville Pike, Rockville,

Maryland.

STATUS: Public and Closed.

MATTERS TO BE CONSIDERED:

Week of January 13

Monday, January 13

10:00 a.m.

Briefing on NRC Strategic Assessment

(Public Meeting)

Contact: John Craig, 301–415–3812

11:30 a.m.

Affirmation Session (Public Meeting)

a. Direct Final Rulemaking: Privatization

Act Conforming Changes and Revision to

the NRC Enforcement Policy (NUREG–

1600) (Tentative)

(Contact: Andrew Bates, 301–415–1963)

Week of January 20—Tentative

Wednesday, January 22

10:00 a.m.

Briefing on Codes and Standards (Public

Meeting)

(Contact: Gil Millman, 301–415–5843)

11:30 a.m.

Affirmation Session (Public Meeting) (if

needed)

Week of January 27—Tentative

Monday, January 27

2:30 p.m.

Briefing by DOE on Plutonium Disposition

(Public Meeting)

(Contact: Vanice Perin, 301–415–8143)

Wednesday, January 29

10:00 a.m.

Briefing on Operating Reactors and Fuel

Facilities (Public Meeting)

(Contact: Victor McCree, 301–415–1711)

11:30 a.m.