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Secretary of Labor Thomas E. Perez
Anvil Construction Company, Inc. Employee's Money Purchase Pension Plan (the Money Purchase Plan), Anvil Construction Co., Employee Profit Sharing Plan (the Profit Sharing Plan), William Andreassi, Mark Andreassi, Michael Andreassi, and Wayne Campbell [Notices] [02/29/2000]

EBSA (Formerly PWBA) Federal Register Notice

Anvil Construction Company, Inc. Employee's Money Purchase Pension Plan (the Money Purchase Plan), Anvil Construction Co., Employee Profit Sharing Plan (the Profit Sharing Plan), William Andreassi, Mark Andreassi, Michael Andreassi, and Wayne Campbell [02/29/2000]

[PDF Version]

Volume 65, Number 40, Page 10825-10826


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DEPARTMENT OF LABOR

Pension and Welfare Benefits Administration

[Exemption Application No. D-10676, et al.]

 
Prohibited Transaction Exemption 2000-08; Grant of Individual 
Exemptions; Anvil Construction Company, Inc. Employee's Money Purchase 
Pension Plan (the Money Purchase Plan), Anvil Construction Co., 
Employee Profit Sharing Plan (the Profit Sharing Plan), William 
Andreassi, Mark Andreassi, Michael Andreassi, and Wayne Campbell

AGENCY: Pension and Welfare Benefits Administration, Labor.

ACTION: Grant of individual exemptions.

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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, DC. 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, 5 U.S.C. 
App. 1 (1996), transferred the authority of the Secretary of the 
Treasury to issue exemptions of the type proposed to the Secretary of 
Labor.

Statutory Findings

    In accordance with section 408(a) of the Act and/or section 
4975(c)(2) of the Code and the procedures set forth in 29 CFR Part 
2570, Subpart B (55 FR 32836, 32847, August 10, 1990) and based upon 
the entire record, the Department makes the following findings:
    (a) The 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.

Anvil Construction Company, Inc. Employee's Money Purchase Pension 
Plan (the Money Purchase Plan), Anvil Construction Co., Employee 
Profit Sharing Plan (the Profit Sharing Plan), William Andreassi, 
Mark Andreassi, Michael Andreassi, and Wayne Campbell, Located in 
Philadelphia, Pennsylvania

[Prohibited Transaction Exemption 2000-08; Exemption Application No. D-
10676 and D-10677]

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 proposed sale (the Sale) of a certain parcel of 
unimproved real property (the Property) from certain accounts (the 
Accounts) in the Money Purchase Plan and the Profit Sharing Plan 
(collectively, the Plans) to the Anvil Construction Company, Inc. 
(Anvil), a party in interest and disqualified person with respect to 
the Accounts, provided that the following conditions are met:
    (a) The terms and conditions of the Sale will be at least as 
favorable to the Accounts as those obtainable in an arm's length 
transaction with an unrelated party;
    (b) Anvil will purchase the Property from the Accounts for the 
greater of the Property's current fair market value or $433,531, an 
amount comprised of the Property's appraised value of $397,000 (the 
Appraised Value) as determined by a qualified, independent appraiser 
and $36,531 which represents the excess of the Property's holding costs 
over appreciation from the time of the Property's acquisition;
    (c) The Sale will be a one-time transaction for cash; and
    (d) The Accounts will pay no fees or commissions in connection with 
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 9, 1999 at 64 FR 
61132.

FOR FURTHER INFORMATION CONTACT: J. Martin Jara of the Department, 
telephone (202) 219-8883 (this is not a toll free number).

The FINA, Inc. Capital Accumulation Plan (the Plan), Located in 
Dallas, Texas

[Prohibited Transaction Exemption 2000-09; Exemption Application No. D-
10763]

Exemption

    The restrictions of sections 406(a), 406(b)(2), and 407(a) 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 (D) of the Code, 
shall not apply, as of June 4, 1999, to the acquisition, holding, and 
exercise by the Plan of certain warrants that were issued by Total, 
S.A. (Total),\1\ pursuant to a tender offer (the Exchange Offer) made 
on May 6, 1999 to all shareholders of PetroFina S.A. (PetroFina), 
including the Plan, provided that the following conditions were 
satisfied:
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    \1\ The applicant states that the warrants issued by Total do 
not constitute ``qualifying employer securities,'' as defined in 
section 407(d)(5) of the Act.
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    (a) The Plan's acquisition and holding of the warrants issued by 
Total (the Total Warrants) in connection with the Exchange Offer 
occurred as a result of an independent act of Total as a corporate 
entity;
    (b) All shareholders of PetroFina, including the Plan, were treated 
in a like manner with respect to all aspects of the Exchange Offer; and
    (c) An independent fiduciary made the determination whether, and to 
what extent, the Plan should participate in the Exchange Offer.

EFFECTIVE DATE: This exemption is effective as of June 4, 1999.
    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 January 5, 2000 at 65 FR 
526.

FOR FURTHER INFORMATION CONTACT: Ms. Karin Weng of the Department, 
telephone (202) 219-8881. (This is not a toll-free number.)

[[Page 10826]]

Bankers Trust Company (BTC), Located in New York, New York

[Prohibited Transaction Exemption 2000-10; Exemption Application No. D-
10837]

Exemption

    The restrictions of section 406(a) 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 (D) of the Code, shall not apply to: 
(1) the granting to BTC (a) by Aslan Realty Partners, L.P. (the LP), 
and by Aslan GP, LLC (the General Partner) of security interests in the 
capital commitments of certain employee benefit plans (the Plans) 
investing in the LP, (b) by the LP of a borrower account funded by the 
Plans' capital contributions, and (c) by the LP and the General Partner 
of the right to make capital calls (Capital Calls), and provide notice 
thereof under the agreement under which the LP is organized and 
operated (the Agreement), where BTC is the representative of certain 
lenders (the Lenders) that will fund a so-called ``credit facility'' 
providing loans to the LP and where the Lenders are parties in interest 
with respect to the Plans; and (2) the execution of an agreement and 
estoppel (the Estoppel) under which the Plans agree to honor Capital 
Calls made to the Plans by BTC, provided that (i) the proposed grants 
and agreements are on terms no less favorable to the Plans than those 
which the Plans could obtain in arm's-length transactions with 
unrelated parties; (ii) the decisions on behalf of each Plan to invest 
in the LP, and to execute such grants and agreements in favor of BTC, 
are made by a fiduciary which is not included among, and is independent 
of and unaffiliated with, the Lenders and BTC; (iii) with respect to 
Plans that have invested or may invest in the LP in the future, such 
Plans have or will have assets of not less than $100 million and not 
more than 5% of the assets of any such Plan are or will be invested in 
the LP. For purposes of this condition (iii), in the case of multiple 
plans maintained by a single employer or single controlled group of 
employers, the assets of which are invested on a commingled basis 
(e.g., through a master trust), this $100 million threshold will be 
applied to the aggregate assets of all such plans; and (iv) the general 
partner of the LP must be independent of BTC, the Lenders and the 
Plans.
    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 January 5, 2000 at 65 FR 
528.

FOR FURTHER INFORMATION CONTACT: Gary H. Lefkowitz 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, DC, this 24th day of February, 2000.
Ivan Strasfeld,
Director of Exemption Determinations, Pension and Welfare Benefits 
Administration, Department of Labor.
[FR Doc. 00-4734 Filed 2-28-00; 8:45 am]
BILLING CODE 4510-29-P