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Secretary of Labor Thomas E. Perez
Proposed Exemptions; Bank of Oklahoma (the Bank) and First Tennessee National Corporation; Notice [Notices] [07/07/2000]

EBSA (Formerly PWBA) Federal Register Notice

Proposed Exemptions; Bank of Oklahoma (the Bank) and First Tennessee National Corporation; Notice [07/07/2000]

[PDF Version]

Volume 65, Number 131, Page 42247-42271



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Part V





Department of Labor





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Pension and Welfare Benefits Administration



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Proposed Exemptions; Bank of Oklahoma (the Bank) and First Tennessee 
National Corporation; Notice


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DEPARTMENT OF LABOR

Pension and Welfare Benefits Administration

[Application No. D-10590, et al.]

 
Proposed Exemptions; Bank of Oklahoma (the Bank) and First 
Tennessee National Corporation

AGENCY: Pension and Welfare Benefits Administration, Labor.

ACTION: Notice of proposed exemptions.

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SUMMARY: This document contains notices of pendency before the 
Department of Labor (the Department) of proposed exemptions from 
certain of the prohibited transaction restrictions of the Employee 
Retirement Income Security Act of 1974 (the Act) and/or the Internal 
Revenue Code of 1986 (the Code).

Written Comments and Hearing Requests

    All interested persons are invited to submit written comments or 
request for a hearing on the pending exemptions, unless otherwise 
stated in the Notice of Proposed Exemption, within 45 days from the 
date of publication of this Federal Register Notice. Comments and 
requests for a hearing should state: (1) the name, address, and 
telephone number of the person making the comment or request, and (2) 
the nature of the person's interest in the exemption and the manner in 
which the person would be adversely affected by the exemption. A 
request for a hearing must also state the issues to be addressed and 
include a general description of the evidence to be presented at the 
hearing.

ADDRESSES: All written comments and request for a hearing (at least 
three copies) should be sent to the Pension and Welfare Benefits 
Administration, Office of Exemption Determinations, Room N-5649, U.S. 
Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 
20210. Attention: Application No.__  , stated in each Notice of 
Proposed Exemption. The applications for exemption and the comments 
received will be available for public inspection in the Public 
Documents Room of the Pension and Welfare Benefits Administration, U.S. 
Department of Labor, Room N-5638, 200 Constitution Avenue, NW., 
Washington, DC 20210.

Notice to Interested Persons

    Notice of the proposed exemptions will be provided to all 
interested persons in the manner agreed upon by the applicant and the 
Department within 15 days of the date of publication in the Federal 
Register. Such notice shall include a copy of the notice of proposed 
exemption as published in the Federal Register and shall inform 
interested persons of their right to comment and to request a hearing 
(where appropriate).

SUPPLEMENTARY INFORMATION: The proposed exemptions were requested in 
applications filed pursuant to section 408(a) of the Act and/or section 
4975(c)(2) of the Code, and in accordance with procedures set forth in 
29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990). 
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 requested to 
the Secretary of Labor. Therefore, these notices of proposed exemption 
are issued solely by the Department.
    The applications contain representations with regard to the 
proposed exemptions which are summarized below. Interested persons are 
referred to the applications on file with the Department for a complete 
statement of the facts and representations.

Bank of Oklahoma (the Bank) Located in Tulsa, OK

[Application No. D-10590]

Proposed Exemption

    Based on the facts and representations set forth in the 
application, the Department is considering granting an exemption under 
the authority of section 408(a) of the Act 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).

Section I. Covered Transactions

    If the exemption is granted, 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 the purchase or redemption of shares by an 
employee benefit plan (the Plan), in certain mutual funds that are 
either affiliated with the Bank (the Affiliated Funds) or are 
unaffiliated with the Bank (the Third Party Funds),\1\ in connection 
with the participation by the Plan in the Bank-sponsored Foundations 
Program (the Foundations Program).
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    \1\ The Affiliated Funds and the Third Party Funds are 
collectively referred to herein as the Funds.
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    In addition, the restrictions of section 406(b) of the Act and the 
sanctions resulting from the application of section 4975 of the Code, 
by reason of section 4975(c)(1)(E) and (F) of the Code, shall not apply 
to the provision, by the Bank, of asset allocation services to an 
independent fiduciary of a participating Plan (the Primary Independent 
Fiduciary) or to a participant (the Directing Independent Fiduciary) of 
a Plan that provides for participant investment direction (the 
Participant-Directed Plan), which may result in the selection of 
portfolios in the Foundations Program for the investment of Plan 
assets, by the Primary Independent Fiduciary or the Directing 
Independent Fiduciary, and the receipt of fees by the Bank and/or its 
affiliates.
    This proposed exemption is subject to the conditions set forth 
below in Section II.

Section II. General Conditions

    (a) The participation by a Plan in the Foundations Program is 
approved by a Primary Independent Fiduciary or a Directing Independent 
Fiduciary, in the case of a Participant-Directed Plan, and, no Plan 
covering employees of the Bank or any of its affiliates is eligible to 
participate in the Foundations Program.
    (b) As to each Plan, the total fees that are paid to the Bank and 
its affiliates constitute no more than reasonable compensation for the 
services provided.
    (c) With the exception of distribution-related fees that are paid 
to the Bank pursuant to Rule 12b-1 (the Rule 12b-1 Fees) of the 
Investment Company Act of 1940 (the Investment Company Act) which are 
offset, no Plan pays a fee or commission by reason of the acquisition 
or redemption of shares in the Funds.
    (d) The terms of each purchase or redemption of shares in the Funds 
remain at least as favorable to an investing Plan as those obtainable 
in an arm's length transaction with an unrelated party.
    (e) The Bank provides written documentation to each Plan's Primary 
Independent Fiduciary or Directing Independent Fiduciary of its 
recommendations, as well as on the design and parameters with respect 
to an asset allocation model (the Asset Allocation Model) based upon 
objective criteria that are uniformly applied.
    (f) Any recommendation or evaluation made by the Bank to a Primary 
Independent Fiduciary or a Directing Independent Fiduciary is 
implemented only at the express direction of such fiduciary.
    (g) The Bank retains an independent financial analyst (the 
Independent Financial Analyst) to--
    (1) Review the investments of Plan assets in a Third Party Fund for 
purposes of performance and suitability;

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    (2) Review determinations by the Bank to add a Third Party Fund or 
replace an Affiliated Fund with a Third Party Fund; and
    (3) Ensure that only one Fund fits an asset segment (the Asset 
Segment) such that there is no overlap between a Third Party Fund and 
an Affiliated Fund. Further, such Independent Financial Analyst may not 
derive more than 5 percent of its total annual revenues from the Bank 
and/or its affiliates.
    (h) The quarterly fee that is paid by a Plan to the Bank and its 
affiliates for asset allocation and related services (the Wrap Fee) 
rendered to such Plan under the Foundations Program is offset by--
    (1) All investment management fees (the Advisory Fees) that are 
paid to it and/or its affiliates by the Affiliated Funds;
    (2) All non-advisory fees, including custodial fees, Rule 12b-1 
Fees or subadministration fees (collectively, the Administrative Fees) 
that are paid to the Bank and/or its affiliates by the Affiliated 
Funds; and
    (3) All Administrative Fees which include, but are not limited to, 
Rule 12b-1 Fees and sub-transfer agency fees, that are paid to the Bank 
and/or its affiliates by the Third Party Funds, such that the sum of 
the offset and the net Wrap Fee will always equal the aggregate Wrap 
Fee, thereby making the Bank's selection of Affiliated Funds or Third 
Party Funds for the Asset Allocation Models a ``fee-neutral'' decision.
    (i) The Plan is automatically rebalanced on a quarterly basis 
(using net asset values of the affected Funds as of the close of 
business) on a pre-established date to the Asset Allocation Model 
previously prescribed by such fiduciary if authorized in writing by the 
Primary Independent Fiduciary, and if one or more Fund allocations 
deviates from the Asset Allocation Model prescribed by such fiduciary 
because--
    (1) At least one transaction required to rebalance the Plan among 
the Funds involves a purchase or redemption of securities valued at 
$100 or more; and
    (2) The net asset value of the Fund affected would be more than 5 
percent of the Plan's investment in such Fund.
    (j) The Bank may make adjustments to the composition of the Asset 
Allocation Model (the Model Adjustments) unilaterally only within 
certain authorized parameters approved by the Primary Independent 
Fiduciary, or upon the consent of the Primary Independent Fiduciary, if 
the Bank proposes to exceed the parameters.
    (1) If the Model Adjustment is made unilaterally pursuant to 
Section II(j) above, the Bank may only deviate from the Normal Position 
of a given Asset Allocation Model within a specified range, not to 
exceed 15 percent (above and below) the Normal Position under Section 
III(1), which is applied to the Asset Allocation Model's entire 
allocation.
    (2) With respect to a Model Adjustment requiring independent 
fiduciary consent, the Bank may not change the asset mix outside the 
limits authorized by the Primary Independent Fiduciary unless it 
provides the Primary Independent Fiduciary and the Directing 
Independent Fiduciary, upon the request of the Primary Independent 
Fiduciary, 30 days' advance written notice of the impending change.
    (k) The notice referred to above in Section II(j) includes a 
termination advisory form (the Termination Advisory) which--
    (1) Advises the Primary Independent Fiduciary of the right to 
withdraw from the Foundations Program or, in the case of the Directing 
Independent Fiduciary, of the right to transfer to a different Asset 
Allocation Model without penalty; and
    (2) States that absent any affirmative action by the Primary 
Independent Fiduciary or the Directing Independent Fiduciary, the Plan 
will be reallocated within the revised Normal Positions for the Asset 
Allocation Model, effective as of a given date.
    (1) The Bank provides the Termination Advisory to the Primary 
Independent Fiduciary and, if applicable, the Directing Independent 
Fiduciary, at least annually; and provides the Termination Advisory in 
all cases whenever the Bank--
    (1) Makes a Model Adjustment where fiduciary consent is needed;
    (2) Adds a new Fund to an Allocation Model;
    (3) Removes an existing Fund within an Allocation Model; or
    (4) Increases its Wrap Fee. Under such circumstances, the notice 
and Termination Advisory are provided at least 30 days prior to the 
implementation of the change.\2\
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    \2\ For an annual mailing of the Termination Advisory or in the 
event the Bank makes a Model Adjustment that is outside of current 
parameters or a Fund is added or substituted, the Termination 
Advisory will include language similar to that contained in Section 
II(k)(1) and (2). In the event the Bank proposes an increase in its 
Wrap Fee, the Termination Advisory will also include language 
similar to that contained in Section II(k)(1). However, under such 
circumstances, Section II(k)(2) will be modified state that absent 
any affirmative action by the Primary Independent Fiduciary or the 
Directing Independent Fiduciary, the revised Wrap Fee will be 
effective as of a specified date.
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    (m) With respect to its participation in the Foundations Program, 
prior to purchasing shares in the Affiliated Funds and the Third Party 
Funds, each Primary Independent Fiduciary, and, if applicable, each 
Directing Independent Fiduciary, receives the following written or oral 
disclosures from the Bank:
    (1) A brochure describing the Foundations Program;
    (2) A Foundations Program Asset Allocation Account Application;
    (3) A Foundations Program Asset Allocation Account Purchase Order;
    (4) A Foundations Program Account Agreement (the Account Agreement) 
providing detailed information on the Foundations Program; the fee 
structure of the Foundations Program; procedures and limitations 
imposed on the Bank with respect to Model Adjustments; rebalancing of a 
participating Plan investor's account; and the Bank's affiliation or 
non-affiliation with the Funds, including a copy of the executed 
Account Agreement between the Plan and the Bank, to the Primary 
Independent Fiduciary rather than to the Directing Independent 
Fiduciary;
    (5) The Bank's Form ADV--Part II which contains a description of 
the Bank's affiliation, if any, with the sponsors, distributors, 
administrators, investment advisers, sub-advisers, custodians and 
transfer agents of each Affiliated Fund and Third Party Fund; and
    (6) Copies of the proposed and final exemptions with respect to the 
exemptive relief described herein. (In the case of a Participant-
Directed Plan, this information may be provided directly by the Bank to 
the Primary Independent Fiduciary for distribution to the Directing 
Independent Fiduciaries.)
    (n) Having acknowledged receipt of the documents described in 
paragraph (m) of Section II, the Primary Independent Fiduciary submits 
a completed Account Agreement to the Bank and represents in writing to 
the Bank that such fiduciary is--
    (1) Independent of the Bank and its affiliates;
    (2) Knowledgeable with respect to the Plan in administrative 
matters;
    (3) Able to make an informed decision concerning the Plan's 
participation in the Foundations Program; and
    (4) Knowledgeable with respect to funding matters related to the 
Plan.
    (o) In addition to the initial disclosures described above in 
paragraph (m) of this Section II, prior to investment in an Asset 
Allocation Model, the Primary Independent Fiduciary or, if applicable, 
the Directing Independent Fiduciary--

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    (1) Receives a written analysis from the Bank based on the 
fiduciary's Investor Profile as well as a description of the Asset 
Allocation Model recommended by a Bank's investment counselor which 
includes a description of the actual fee structure and the actual basis 
points to be rebated to such Plan fiduciary;
    (2) Receives a prospectus for each Affiliated Fund and Third Party 
Fund in which the Plan may be invested and, upon such fiduciary's 
request, is provided a Statement of Additional Information which 
supplements the prospectus; and
    (3) Acknowledges receipt of the foregoing documents in writing to 
the Bank.
    (p) With respect to their ongoing participation in the Foundations 
Program, each Primary Independent Fiduciary and/or Directing 
Independent Fiduciary receives the following continuing disclosures 
from the Bank:
    (1) Copies of applicable prospectuses;
    (2) Written confirmations of each purchase or redemption of shares 
of an Affiliated Fund or a Third Party Fund, including transactions 
implemented as a result of a realignment of the Asset Allocation 
Model's investment mix or from the rebalancing of a Plan's investments 
in conformity with the selected Asset Allocation Model;
    (3) Telephone quotations of such Plan's balance (or if relevant, 
individual account balances of Directing Independent Fiduciaries) under 
the Foundations Program;
    (4) Periodic, but at least quarterly, account statements showing 
the Plan's value (or if relevant, individual account balances of 
Directing Independent Fiduciaries), a summary of purchase, sale and 
exchange activity and dividends received or reinvested and a summary of 
cumulative realized gain and/or loss;
    (5) Semiannual or annual reports that include financial statements 
for the Funds as well as a description of the fees paid to the Bank and 
its affiliates;
    (6) At least annually, a written or oral inquiry from the Bank to 
ascertain whether the information provided on the Investor Profile is 
still accurate and to determine if such information should be updated;
    (7) A Termination Advisory provided on an annual basis as well as 
at other times noted in paragraph (1) of this Section II; and
    (8) The Bank's investment advisory and other agreements with any 
Affiliated Fund as well as its distribution agreement pertaining to the 
Third Party Funds, upon request of the Primary Independent Fiduciary. 
(Communications received from the Funds (e.g., prospectuses, annual 
reports, quarterly reports, notices regarding changes in Fund managers, 
proxy mailings, etc.) will be distributed to the Primary Independent 
Fiduciary, who may elect to pass them through to the Directing 
Independent Fiduciaries.)
    (q) The Bank maintains, for a period of six years, the records 
necessary to enable the persons described in paragraph (r) of this 
Section II to determine whether the conditions of this exemption have 
been met, except that--
    (1) A prohibited transaction will not be considered to have 
occurred if, due to circumstances beyond the control of the Bank and/or 
its affiliates, the records are lost or destroyed prior to the end of 
the six year period; and
    (2) No party in interest other than the Bank shall be subject to 
the civil penalty that may be assessed under section 502(i) of the Act, 
or to the taxes imposed by section 4975(a) and (b) of the Code, if the 
records are not maintained, or are not available for examination as 
required by paragraph (r) of this Section II below.
    (r)(1) Except as provided in section (r)(2) of this paragraph and 
notwithstanding any provisions of subsections (a)(2) and (b) of section 
504 of the Act, the records referred to in paragraph (q) of this 
Section II are unconditionally available at their customary location 
during normal business hours by:
    (A) Any duly authorized employee or representative of the 
Department, the Internal Revenue Service or the Securities and Exchange 
Commission;
    (B) Any fiduciary of a participating Plan or any duly authorized 
representative of such fiduciary;
    (C) Any contributing employer to any participating Plan or any duly 
authorized employee representative of such employer; and
    (D) Any participant or beneficiary of any participating Plan, or 
any duly authorized representative of such participant or beneficiary.
    (r)(2) None of the persons described above in paragraphs (r)(1)(B)-
(r)(1)(D) of this paragraph (r) are authorized to examine the trade 
secrets of the Bank or commercial or financial information which is 
privileged or confidential.

Section III. Definitions

    For purposes of this proposed exemption:
    (a) The term ``Bank'' means the Bank of Oklahoma, N.A., a 
subsidiary of BOK Financial Corporation and any affiliate of the Bank, 
as defined in paragraph (b) of this Section III.
    (b) An ``affiliate'' of the Bank includes--
    (1) Any person directly or indirectly through one or more 
intermediaries, controlling, controlled by, or under common control 
with the Bank.
    (2) Any individual who is an officer, director or partner in the 
Bank or a person described in subparagraph (b)(1) of this Section III, 
and
    (3) Any corporation or partnership of which the Bank or an 
affiliate or person described in subparagraphs (b)(1) or (b)(2) of this 
Section III, is a 10 percent or more partner or owner.
    (c) The term ``control'' means the power to exercise a controlling 
influence over the management or policies of a person other than an 
individual.
    (d) The term ``officer'' means a president, any vice president in 
charge of a principal business unit, division or function (such as 
sales, administration or finance), or any other officer who performs a 
policy-making function for the entity.
    (e) The term ``Plan'' refers to an employee benefit plan which is 
eligible to participate under the Foundations Program. Such Plans are 
qualified under sections 401(a) and 501(a) of the Code and include 
Keogh plans (Keogh Plans); individual retirement accounts (IRAs); 
simplified employee pension plans (SEP-IRAs); Salary Reduction 
Simplified Employee Pensions (SARSEPs), provided that the SARSEP was 
established prior to January 1, 1996, the date as of which the Code 
provision authorizing such plans was repealed); and savings incentive 
match plans for employees (SIMPLEs); and, in the case of a Participant-
Directed Plan, the individual account of a Directing Independent 
Fiduciary.
    (f) The term ``Directing Independent Fiduciary'' means, as to a 
participating Plan, a participant in a Participant-Directed Plan that 
is authorized to direct the investment of his or her account balance.
    (g) The ``Administrative Fees'' refer to custodial, Rule 12b-1 
Fees, and sub-administration fees that are paid to the Bank or its 
affiliates from or on behalf of the Affiliated Funds on account of the 
Bank's services to the Affiliated Funds, as well as Rule 12b-1 Fees, 
sub-transfer agency fees and other fees that may be paid to the Bank or 
its affiliates on account of the investment of participating Plans in 
the Third Party Funds.
    (h) The ``Advisory Fees'' refer to investment advisory fees that 
are paid by the Affiliated Funds to the Bank and its affiliates.

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    (i) The term ``Affiliated Fund'' means a portfolio of an investment 
company registered under the Investment Company Act for which the Bank 
or an affiliate of the Bank acts as the investment adviser, and may 
also serve as custodian or sub-administrator.
    (j) The term ``Asset Segment'' refers to a subdivision of each 
asset class (the Asset Class) into which the Asset Allocation Model is 
divided (e.g., international equities is an Asset Segment under the 
Asset Class ``stocks''). Asset Segments are determined by the Bank with 
reference to recognized investment objectives and styles established by 
independent mutual fund analysts such as Morningstar, Inc. 
(Morningstar) and Lipper Analytical Services, Inc. (Lipper).
    (k) The ``Investment Management Group'' refers to a committee 
comprised of the Bank's senior investment professionals.
    (l) The term ``Model Adjustment'' means an adjustment to the Normal 
Position of an Asset Allocation Model (i.e., a change in the Asset 
Allocation Model among the three Asset Classes, the division of the 
Asset Class into Asset Segments, and the identity of the Funds which 
represent the various Asset Segments).
    (m) The ``Normal Position'' refers to the initial allocation of 
each Asset Allocation Model among the various Asset Classes, Asset 
Segments and Funds.
    (n) The ``Offset Fees'' refer to the Advisory Fees and 
Administrative Fees that are paid by, or on behalf of, the Funds to the 
Bank and/or its affiliates and which are offset against the Wrap Fee.
    (o) The term ``Participant-Directed Plan'' refers to a qualified 
Plan under which participants direct the investments of their 
individual accounts.
    (p) The term ``Primary Independent Fiduciary'' refers to a plan 
fiduciary within the meaning of section 3(21)(A) of the Act who has (1) 
investment discretion and authority over the Plan's assets and (2) is 
not an affiliate of the Bank. Typically, the Primary Independent 
Fiduciary will be the plan administrator, the employer which sponsors 
the Plan, an investment committee appointed under the Plan document or 
an IRA account holder.
    (q) The term ``Termination Advisory'' refers to the notice advising 
the Primary Independent Fiduciary or the Directing Independent 
Fiduciary of the right to withdraw from the Foundations Program without 
penalty. The Termination Advisory, which will contain instructions on 
its use, will be provided to such participants on an annual basis, or 
whenever the Bank makes a Model Adjustment that is outside of a current 
Allocation Model, in the event a new Fund is added to an Allocation 
Model or an existing Fund is removed from an Allocation Model, or the 
Bank's Wrap Fee is increased. Depending on the circumstances 
precipitating its distribution, the Termination Advisory will include a 
provision advising the Primary Independent Fiduciary or the Directing 
Independent Fiduciary that absent any affirmative action by the Primary 
Independent Fiduciary or the Directing Independent Fiduciary, the 
authorization of the Plan's participation in the Foundations Program 
will continue, or the participating Plan will be reallocated in 
accordance with the revised Normal Position for the Asset Allocation 
Model in which the Plan's assets are invested, or the Bank's Wrap Fee 
will be increased. The Bank will provide the Termination Advisory to 
the Primary Independent Fiduciary and/or the Directing Independent 
Fiduciary at least 30 days prior to the implementation of the proposed 
change.
    (r) A ``Third Party Fund'' is a portfolio of an investment company 
that is registered under the Investment Company Act for which neither 
the Bank nor any affiliate of the Bank acts as investment adviser, 
custodian and/or sub-administrator.
    (s) The term ``Wrap Fee'' refers to the Plan or account-level fee 
the Bank, BOSC, Inc. (BOSC) and/or their affiliates charge each Plan 
for the asset allocation, custodial and related services under the 
Foundations Program.
    (t) The term ``Independent Financial Analyst'' means an independent 
third party which has entered into a written contract with the Bank to 
(1) review the investment of Plan assets in a Third Party Fund, (2) 
review the Funds each time the Bank determines to add a Third Party 
Fund or replace an Affiliated Fund with a Third Party Fund, and (3) 
determine that only one Fund fits an Asset Segment such that there is 
no overlap between a Third Party Fund and an Affiliated Fund. The 
Independent Financial Analyst may not derive more than 5 percent of its 
total annual revenues from the Bank or its affiliates, including its 
fee for serving as the Independent Financial Analyst.
    As for minimum credentials, the Independent Financial Analyst will 
be a Chartered Financial Analyst and will be employed by a firm which 
has at least a regional presence in the investment products and 
services industry. In addition, the individual assigned the duties of 
the Independent Financial Analyst must alone, or with his or her 
employer, have a certain minimum number of years experience in the 
investment products and services industry and must not be affiliated 
with the Bank, BOSC or BISYS Fund Services, Inc. (BISYS). Should the 
Bank replace the Independent Financial Analyst, that entity must meet 
the same requirements applicable to the current Independent Financial 
Analyst. In addition, the Bank will be required to provide the 
Department with advance written notification of the change in 
Independent Financial Analysts and the qualifications of the successor. 
Unless the Department objects to the change, the Foundations Program 
will operate with the new Independent Financial Analyst.

Summary of Facts and Representations

Description of the Parties
    1. The parties to the transactions discussed herein are described 
as follows:
    (a) The Bank is a national bank headquartered in Tulsa, Oklahoma 
and a wholly owned subsidiary of BOK Financial Corporation, an Oklahoma 
corporation. The Bank maintains 60 branch banks in the Oklahoma City 
and Tulsa, Oklahoma metropolitan areas. It is the largest financial 
institution headquartered in Oklahoma and provides a full array of 
commercial banking and retail banking services while its non-bank 
subsidiaries engage in various bank-related services, including 
mortgage banking and providing credit life, accident and health 
insurance on certain loans originated by its subsidiaries. The Bank 
also offers a variety of trust and investment services for both 
corporate and individual customers. For corporate clients, these 
services include custodianship, trusteeship, management, administration 
and recordkeeping of pension plans, profit sharing plans (including 
401(k) plans) and master trusts.
    In addition, the Bank serves as custodian of IRAs, SEP-IRAs, 
SARSEPs and SIMPLE Plans and it sponsors non-standardized prototype 
plans. Further, the Bank and its subsidiaries provide investment 
advisory services to trust customers and mutual funds and they manage 
collective investment funds. As of December 31, 1999, the Bank and its 
affiliates had over $8.1 billion in assets under management.
    The Bank serves as each Affiliated Fund's investment adviser. 
Subject to the general supervision of the Affiliated Funds' Board of 
Trustees (the Trustees)

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and in accordance with the investment objectives and restrictions of 
each Affiliated Fund, the Bank manages the Affiliated Funds, makes 
decisions with respect thereto, places orders for all purchases and 
sales of portfolio securities, and maintains each Affiliated Fund's 
records relating to such purchases. Neither the Bank nor any affiliate 
serves as the named distributor for any Fund.
    (b) BOSC is a wholly owned subsidiary of the Bank and a full-
service broker-dealer and investment adviser registered with the SEC 
and the National Association of Securities Dealers (NASD). The Bank 
utilizes members of BOSC's sales force who have appropriate securities 
licenses to market the Foundations Program. However, BOSC will not 
perform any brokerage transactions on behalf of the Funds.
    (c) BISYS and its wholly owned affiliate, BISYS Fund Services Ohio, 
Inc. (BISYS Ohio) are not affiliated with the Bank. BISYS is the 
administrator and distributor of each Affiliated Fund. BISYS Ohio, a 
registered transfer agent, serves as the transfer agent and performs 
fund accounting for the Affiliated Funds. For its administrative 
services, BISYS may receive, from the Affiliated Funds, an annualized 
fee of up to 0.20 percent of each Affiliated Fund's average daily net 
assets. Under each Affiliated Fund's Distribution and Shareholder 
Services Plan (the Distribution Plan), BISYS receives Rule 12b-1 Fees 
on a monthly basis. The current maximum annualized Rule 12b-1 Fees paid 
to BISYS is 0.25 percent of the average daily net assets of each 
Affiliated Fund. For its transfer agency and fund accounting services, 
BISYS Ohio may receive annual fees of up to 0.05 percent of each 
Affiliated Fund's average daily net assets.
    (d) CoreLink Financial, Inc. (CoreLink) is an affiliate of BISYS. 
It is a full service broker-dealer and investment adviser registered 
with the SEC and the NASD. It is the clearing broker for all 
Foundations Program transactions and maintains custody of all of the 
securities held under the Foundations Program.
    (e) AMR Investments of Fort Worth, Texas, has been retained by the 
Bank to serve as the Independent Financial Analyst for the Foundations 
Program. AMR Investments is a wholly owned subsidiary of AMR 
Corporation, the parent company of American Airlines, Inc. Incorporated 
in 1986, AMR Investments is directly responsible for the investment 
management and oversight of AMR Corporation's defined benefit and 
defined contribution plans, as well as fixed income investments. AMR 
Investments also provides investment advisory services to institutional 
and retail clients and acts as manager of the American AAdvantage 
Funds, a family of diversified mutual funds. Further, AMR Investments 
offers customized fixed income portfolio management services. As a 
multibillion dollar asset management firm, AMR Investments has clients 
that include defined benefit plans, defined contribution plans, 
foundations, endowments, corporations and other institutional 
investors.
    AMR Investments is not affiliated with the Bank, BOSC or BISYS. For 
services rendered to the Bank as the Independent Financial Analyst, AMR 
Investments may not derive more than 5 percent of its total annual 
revenues from the Bank and/or its affiliates, including its services as 
the Independent Financial Analyst.
    (f) The Plans that are eligible to participate in the Foundations 
Program will consist of employee benefit plans that are qualified under 
sections 401(a) and 501(a) of the Code. The Plans will include Keogh 
Plans, IRAs, SEP-IRAs, SARSEPs (provided that the SARSEP was 
established prior to January 1, 1996, the date as of which the Code 
provision authorizing such plans was repealed) and SIMPLE plans as 
defined under 401(k)(11)(A) of the Code. The Bank may serve as an 
eligible Plan's trustee, custodian, recordkeeper or prototype sponsor. 
However, no Plan in which employees of the Bank or any of its 
affiliates participate will be eligible to invest in the Foundations 
Program.
The Funds
    2. The Affiliated Funds consist of portfolios of the American 
Performance Funds, a diversified, open-end management investment 
company registered under the Investment Company Act. The Funds were 
organized as a Massachusetts business trust and began active operations 
in August 1990. Although the Affiliated Funds currently consist of ten 
separately-managed portfolios, it is represented that additional 
portfolios may be added in the future. Initially, eight Affiliated Fund 
portfolios will be available to investors under the Foundations 
Program.
    Overall management and supervision of each Affiliated Fund rests 
with such Fund's Board of Trustees. Individual Trustees may be removed 
by the Board of Trustees or by the shareholders. The Trustees manage 
the Affiliated Funds in accordance with Massachusetts law governing 
business trusts. There are currently four Trustees, three of whom are 
not ``interested persons.'' The Trustees elect the officers of the 
Affiliated Funds who supervise such Funds' day-to-day operations. The 
members of the Board of Trustees receive fees and are reimbursed for 
their expenses in connection with each meeting of the Board of Trustees 
they attend, except that no Trustee who is an officer or employee of 
the Bank, any sub-adviser or BISYS receives any compensation from the 
Affiliated Fund for acting as a Trustee. The Affiliated Funds' officers 
receive no compensation from the Funds for performing the duties of 
their offices.
    The Bank, in its capacity as investment adviser, and BISYS, in its 
capacity as administrator, bear all expenses incurred in connection 
with the performance of their duties, other than the cost of securities 
(including brokerage commissions) purchased for the Affiliated Funds. 
Such expenses may include, but are not limited to, taxes, interest, 
brokerage fees and commissions, fees and travel expenses for the 
Trustees of the Fund, SEC fees, state securities qualification fees, 
and the costs of preparing and printing prospectuses for regulatory 
purposes and for distribution to current shareholders.
    3. The Third Party Funds are portfolios of diversified, open-end 
management investment companies registered under the Investment Company 
Act. They currently consist of the Federated Tax-Free Instruments, the 
Federated GNMA Trust, the Federated Bond Fund, Franklin Insured Tax-
Free Income Fund, Federated Equity Income Fund, the Neuberger Berman 
Genesis Fund and the Templeton Foreign Fund. No Third Party Fund's 
sponsor, administrator, distributor, investment adviser or sub-adviser 
is affiliated with the Bank.
The Proposed Transactions
    4. The Foundations Program is designed to make no-load Affiliated 
Funds and Third Party Funds available to an eligible Plan, thereby 
affording the Plan the opportunity to diversify its investments. The 
Foundations Program will also make professional asset allocation 
management available to a smaller Plan which may not have the benefit 
of such services. Moreover, by participating in the Foundations 
Program, a Primary Independent Fiduciary or a Directing Independent 
Fiduciary will receive a single, consolidated statement and pay a 
single asset management fee. Finally, all dealings between a Plan 
participating in the Foundations Program, the Funds and the Bank will 
remain on a basis which is at least as favorable to the Plan

[[Page 42253]]

as such dealings are with other shareholders of the Funds holding the 
same classes of shares as the Plan.
    Accordingly, the Bank and BOSC (together, the Applicants) request 
an administrative exemption from the Department in order to implement 
the Foundations Program for Plan investors. If granted, the exemption 
will provide relief from section 406(a) of the Act in order to permit 
the purchase or redemption of shares in the Affiliated Funds and the 
Third Party Funds by a Plan, in connection with the Plan's 
participation in the Foundations Program. In addition, the exemption 
will provide relief from section 406(b) of the Act to allow the Bank to 
provide asset allocation services to a Primary Independent Fiduciary or 
to a Directing Independent Fiduciary of a Participant-Directed Plan, 
which may result in the selection of portfolios by the Primary 
Independent Fiduciary or the Directing Independent Fiduciary in the 
Foundations Program for the investment of Plan assets and the receipt 
of fees by the Bank and/or its affiliates.
    The Applicants are concerned that the Bank's fiduciary activities 
under the Foundations Program (e.g., recommending an Asset Allocation 
Model, making a Model Adjustment or rebalancing a participating Plan's 
account) will cause the Plan to pay additional fees (i.e., Advisory 
Fees and Administrative Fees) to the Bank or an affiliate of the Bank 
or cause the Bank or a Bank affiliate to receive consideration from a 
third party in connection with a transaction involving the Plan. The 
Applicants are concerned that the combination of services the Bank will 
provide under the Foundations Program, particularly, recommending an 
Asset Allocation Model, making Model Adjustments and rebalancing 
participating Plan accounts, may be deemed to constitute prohibited 
acts of self-dealing in violation of section 406(b)(1) of the Act. 
Therefore, the Applicants request exemptive relief from the Department 
for the transactions that are described above.
Operation of the Foundations Program
    5. An eligible Plan's Primary Independent Fiduciary may decide to 
enroll a Plan in the Foundations Program. The minimum investment 
required to establish an account in the Foundations Program is $10,000. 
In the case of a Participant-Directed Plan, the minimum applies to each 
account in the participating Plan. From time to time, however, the Bank 
may lower or waive the minimum investment amount.
    At any time, a Primary Independent Fiduciary or a Directing 
Independent Fiduciary may add or withdraw assets of a Plan to or from 
the Foundations Program (subject to a $100 minimum redemption and 
purchase requirement per participating Plan which will continue to 
apply after the first year). In the case of a Participant-Directed 
Plan, the $100 limit will apply to each account in the Plan and the 
contributions will be held in the American Performance U.S. Treasury 
Fund, an Affiliated Fund, until such amounts reach $1,000,\3\ at which 
time the contributions will be liquidated and the proceeds invested 
pursuant to the appropriate Asset Allocation Model.\4\ The $100 limit 
will not apply if the participating Plan is completely liquidated 
(e.g., the participant terminates employment with the plan sponsor).
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    \3\ Because of the regularly scheduled rebalancing of each Plan 
investor's account, the $1,000 threshold for contributions will not 
apply each year to new employer or employee contributions.
    \4\ The Department is not providing, nor have the Applicants 
requested relief from the provisions of section 404(c) of the Act 
with respect to the Bank's temporary holding of contributions by a 
Participant-Directed Plan in the American Performance U.S. Treasury 
Fund.
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    6. Each participating Plan's Primary Independent Fiduciary or 
Directing Independent Fiduciary will complete an Investor Profile and 
submit it to an investment counselor employed by the Bank or an 
affiliate who will interact with the Plan investor. The Investor 
Profile is a written questionnaire designed by BISYS and the Bank to 
assess such fiduciary's risk tolerance and financial objectives as they 
apply to the participating Plan. In the case of a single-participant 
Plan such as an IRA, the Bank will distribute the Investor Profile and 
other materials directly to the Primary Independent Fiduciary. In the 
case of a Participant-Directed Plan, the Bank will provide Investor 
Profiles and other information on the Foundations Program, at the 
Primary Independent Fiduciary's discretion, either to the Primary 
Independent Fiduciary for distribution to the Directing Independent 
Fiduciary or, directly to the Directing Independent Fiduciary. If 
requested by a Primary Independent Fiduciary, the Bank may also provide 
additional information or documentation that is provided to such 
Primary Independent Fiduciary to the Directing Independent Fiduciaries.
    The responses to the Investor Profile will be analyzed by 
investment counselors, employed by the Bank or an affiliate, utilizing 
software developed and maintained by BISYS. Applying objective criteria 
to the results of the analysis, the Bank will recommend a particular 
Asset Allocation Model which is appropriate for the participating Plan. 
The Asset Allocation Model will also describe the fee structure to be 
applied and the actual number of basis points to be rebated to the Plan 
investor and will use a spreadsheet to show how the rebate is 
determined.
    In conjunction with the recommendation, the Bank will provide each 
Primary Independent Fiduciary or Directing Independent Fiduciary with 
written materials explaining (a) market risk, (b) what to consider when 
assessing one's own risk tolerance and investment objectives, (c) 
historical risk and return characteristics of various Asset Classes and 
Asset Segments, (d) the advantage of diversifying to reduce market 
risk, and (e) historical risk and return characteristics of various 
strategically-allocated portfolios. The Bank, through the investment 
counselor, may also describe other Asset Allocation Models that are 
available to the Plan and provide additional educational materials to 
the Primary Independent Fiduciary or the Directing Independent 
Fiduciary.
    Before participating in the Foundations Program, each Primary 
Independent Fiduciary or Directing Independent Fiduciary will also be 
shown the historical performance of the recommended Asset Allocation 
Model, including the number of years in which it has produced a 
negative return, the average loss in each such year, the average annual 
return, and the performance during the Model's five best and worst 
years. The Primary Independent Fiduciary or the Directing Independent 
Fiduciary may then accept the Bank's recommendation or invest the Plan 
in another Asset Allocation Model. The Plan will not be permitted to 
invest under the Foundations Program until the Primary Independent 
Fiduciary or the Directing Independent Fiduciary affirmatively directs 
the Bank to invest Plan assets under a particular Asset Allocation 
Model.
    At any time, a Primary Independent Fiduciary or a Directing 
Independent Fiduciary may submit a new Investor Profile or choose a 
different Asset Allocation Model. At least annually, the Bank will ask 
each Primary Independent Fiduciary or Directing Independent Fiduciary, 
in writing, whether any information included on the Investor Profile 
has changed. The Bank will analyze and respond to a new Investor 
Profile in the same manner that it responds to the original Investor 
Profile.
    7. Currently, the Bank has developed five Asset Allocation Models. 
They are the Capital Preservation Model, the

[[Page 42254]]

Income Model, the Growth & Income Model, the Growth Model and the 
Aggressive Growth Model. In addition to the present Asset Allocation 
Models, the Bank proposes to add more Asset Allocation Models to the 
Foundations Program in the future.
    Each Asset Allocation Model will allocate a participating Plan's 
assets among three major Asset Classes: cash equivalents, bonds and 
stocks. For example, the Bank's Capital Preservation Model is invested 
in Asset Classes in the following percentages: Cash Equivalents (15 
percent), Bonds (60 percent) and Stocks (25 percent). Each Asset Class 
will be further allocated into one or more Asset Segments, each of 
which represents a class of investment that the Bank believes is 
necessary to achieve the proper mix of risk and return in an Asset 
Class. To this end, the Bank will use a current list of mutual fund 
investment objectives and investment styles developed by Morningstar 
and Lipper, independent mutual fund analysts to determine the 
appropriate Asset Segments for a particular Asset Class.\5\ The Bank 
will utilize Morningstar to classify equity Asset Segments and Lipper 
to classify fixed-income Asset Segments (including money market funds 
which Morningstar does not classify). For example, the Stock Asset 
Class under the Bank's Capital Preservation Model will include 
investments in three Funds (the Templeton Foreign Fund, the American 
Performance Equity Fund and the American Performance Growth Equity 
Fund) representing three Asset Segments (international stocks, income-
producing stocks and growth equity stocks), respectively.
---------------------------------------------------------------------------

    \5\ The Bank will use the classification services provided by 
Morningstar and Lipper unless circumstances beyond its control 
require that the Bank select another independent, established mutual 
fund analyst.
---------------------------------------------------------------------------

    The Bank's Investment Management Group, which is comprised of the 
Bank's senior investment professionals, will determine the allocation 
of each Asset Allocation Model among the major Asset Classes, as well 
as the allocation of the major Asset Classes among the Asset Segments. 
In effect, the Investment Management Group will follow the 
classification systems devised by Morningstar and/or Lipper in order to 
fill particular Affiliated Funds or Third Party Funds within the given 
Asset Segments.
Model Adjustments
    8. The Bank's Investment Management Group creates and monitors the 
composition of the Asset Allocation Models and reviews each Model's 
composition at least monthly. As noted in Representation 7, the 
Investment Management Group also determines the Asset Allocation 
Model's division among the three Asset Classes, the division of each 
Asset Class into Asset Segments and the allocation of each Asset 
Segment among the Affiliated Funds and the Third Party Funds.\6\ The 
breakdown among the Asset Classes and the Funds which comprise those 
classes when a participating Plan is first invested pursuant to the 
Asset Allocation Model is the Model's ``Normal Position.'' The 
Investment Management Group may adjust the Normal Position periodically 
as dictated by changing economic and market conditions. There are two 
types of Model Adjustments: (a) Those that the Bank may make 
unilaterally and (b) those that require the consent of the Primary Plan 
fiduciary. Any deviation from the Normal Position will apply to the 
Plan assets invested pursuant to the Asset Allocation Model both prior 
to and after the deviation (i.e., both old and new money).\7\
---------------------------------------------------------------------------

    \6\ As discussed in Representation 11, the Investment Management 
Group will select a Third Party Fund to fill an Asset Segment only 
when (a) an Affiliated Fund representing that Asset Segment does not 
exist or (b) an Affiliated Fund representing the Asset Segment 
exists but it is not an ``equivalent'' to the Third Party Fund. To 
be equivalent to a Third Party Fund, an Affiliated Fund must have 
been publicly offering shares for at least one year. The total 
return performance for the Affiliated Fund must be equal to or 
exceed the total return performance of the Third Party Fund for 
either the most recent one year reporting period or the annualized 
three, five or ten year reporting periods. Further, the total 
expense ratio for the Affiliated Fund, determined in accordance with 
SEC rules for performance, must not be higher than the relevant 
Third Party Fund. In addition, as noted above, the Bank will 
determine which Fund fits within an Asset Segment based upon 
criteria developed by Morningstar and Lipper as to what type of Fund 
should fill that Asset Segment. As discussed in Representation 13, 
the Independent Financial Analyst, using Morningstar or Lipper 
classification criteria, will compare the Third Party Funds with the 
Affiliated Funds.
    \7\ In this regard, once the Normal Position is adjusted, the 
revised Normal Position will be applied to the entire Plan rather 
than only to amounts contributed to the Plan after the effective 
date of the adjustment. For example, assume that a Plan has invested 
$100,000 in Asset Allocation Model X, which is equally divided 
between Funds A and B. Because the Plan has been rebalanced, it has 
almost equal amounts invested in Funds A and B, despite their uneven 
earnings. When Asset Allocation Model X is adjusted to provide for a 
55 percent investment in Fund A and a 45 percent allocation to Fund 
B, the entire $100,000 in the plan will be invested, accordingly--
i.e., $55,000 in Fund A and $45,000 in Fund B. Future contributions 
to the Plan will be allocated in a similar manner.
---------------------------------------------------------------------------

    A Model Adjustment does not include the substitution of a Fund but 
is deemed necessary to effect a change to an Allocation Model due to 
market conditions. The Bank anticipates that Funds will be substituted 
only under extraordinary circumstances (see Representation 14) whereby 
advance notice will be given to the Primary Independent Fiduciary to 
effect the change. Accordingly, a Model Adjustment and a Fund 
substitution are treated as a separate process by the Bank.
    With respect to unilateral Model Adjustments, the Account Agreement 
entered into by each Primary Independent Fiduciary will authorize the 
Bank to deviate from the Normal Position of a given Asset Allocation 
Model within a specified range, not exceeding 15 percent above or below 
the Normal Position. The Model Adjustment will be made for all clients 
having the same Asset Allocation Model. The percentage will be applied 
to the Model's entire allocation, so the adjusted stock position of, 
for example, the Capital Preservation Model (the Normal Position of 
which has 25 percent invested in stocks), could range from 10 percent 
to 40 percent. The specified range may be higher for a deviation from 
the Asset Allocation Model's cash position which will be governed by 
the Account Agreement. Any change to an Asset Class will be separately 
allocated among the Asset Segments.
    A corresponding decrease in an Asset Class must also fall within 
the authorized deviation parameters. Further, the original Normal 
Position will remain the standard for determining whether future Model 
Adjustments fall within the acceptable range.
    9. The Bank may not change the Normal Position (i.e., deviate more 
than the range specified in the Account Agreement) without providing 
the Primary Independent Fiduciary of each participating Plan that is 
invested pursuant to the affected Asset Allocation Model with a written 
notice of the impending change at least 30 days in advance of its 
effective change. If requested by the Primary Independent Fiduciary of 
a Participant-Directed Plan, the Bank will provide this notice to each 
Directing Independent Fiduciary. The 30 day notice period is intended 
to give the Primary Independent Fiduciary or the Directing Independent 
Fiduciary time to withdraw from the Foundations Program if he or she 
elects not to have the change made. The notice will include a 
Termination Advisory which will advise the Primary Independent 
Fiduciary or the Directing Independent Fiduciary (a) of his or her 
right to withdraw from the Foundations Program without penalty and (b) 
that

[[Page 42255]]

absent affirmative action by the Primary or Directing Independent 
Fiduciary, the Plan will be reallocated in accordance with the revised 
Normal Positions for the Asset Allocation Model, effective as of a 
given date.
    If the Bank makes a Model Adjustment outside of the specified 
limits, the new allocation percentages will become the revised Normal 
Position for the Asset Allocation Model. The Account Agreement will 
then authorize the Bank to again deviate within the specified ranges 
and will require the 30 day notice and Termination Advisory described 
above for a shift outside the revised Normal Position.
Rebalancing
    10. After a participating Plan is invested in an Asset Allocation 
Model, varying performance results among the Funds that comprise the 
Asset Allocation Model will eventually cause a Plan to fail to meet the 
Normal Position set forth in the applicable Asset Allocation Model. 
Therefore, prior to the end of each calendar quarter, the Bank will 
review each participating Plan to determine whether its allocation 
among the Funds will be materially out of line with the parameters 
prescribed by the Asset Allocation Model. The Bank will apply the net 
asset value of the affected Funds as of the end of each calendar 
quarter. A Plan is materially out of line with the Asset Allocation 
Model parameters if at least one transaction required to rebalance the 
participating Plan among the Funds (a) would involve a purchase or sale 
of securities valued at $100 or more, or (b) the net asset value of the 
Fund affected would represent more than 5 percent of the Plan's 
investment in such Fund. If a participating Plan is rebalanced, the 
Bank will buy and sell Fund shares from the distributor at net asset 
value, as of the close of business on a pre-established date within 5 
business days prior to the end of the calendar quarter, in the amounts 
necessary to bring the participating Plan back into conformity with the 
appropriate Asset Allocation Model at the Asset Segment level. There 
will be no cross-trading of securities between the Funds. Neither the 
Bank nor its affiliates will receive commissions from such sales and 
the participating Plans will not be charged a redemption fee.
    The Account Agreement will disclose the circumstances under which a 
participating Plan will be rebalanced and the date on which the 
necessary trades will occur. It is represented that rebalancing will 
not involve the exercise of any investment discretion by the Bank.
    The Primary Independent Fiduciary or the Directing Independent 
Fiduciary will not be given the option of not having their account in 
the Plan rebalanced because this, according to the Bank, will undermine 
the Asset Allocation Model concept. As noted herein, each Primary 
Independent Fiduciary or Directing Independent Fiduciary will, however, 
have the option of selecting another Asset Allocation Model or 
withdrawing from the Foundations Program.
Fund Monitoring
    11. The Bank's Investment Management Group will select and 
periodically review the performance and continued suitability of the 
Affiliated and Third Party Funds that are included within each Asset 
Allocation Model. The Investment Management Group will select an 
Affiliated Fund to fill an Asset Segment when there is an appropriate 
Affiliated Fund but will select Third Party Funds when (a) an 
Affiliated Fund representing that Asset Segment does not exist or (b) 
an Affiliated Fund representing the Asset Segment exists but it is not 
an ``equivalent'' of the Third Party Fund. As noted above, an 
Affiliated Fund is deemed the equivalent of a Third Party Fund if (a) 
the Affiliated Fund has been publicly offering shares for at least one 
year, (b) total return performance of the Affiliated Fund is equal to 
or exceeds the total return performance of the Third Party Fund for 
either the most recent one year reporting period or the annualized 
three, five or ten year reporting periods, and (c) the total expense 
ratio, determined in accordance with SEC rules for performance, is not 
higher than the relevant Third Party Fund.\8\
---------------------------------------------------------------------------

    \8\ As noted previously, assuming there are 75 Small Cap 
International Funds within the universe of Third Party Funds, the 
Independent Financial Analyst will examine all of the relevant Funds 
using the Morningstar or Lipper classification systems.
---------------------------------------------------------------------------

    12. To review the selection by the Investment Management Group of a 
Third Party Fund to fill an Asset Segment, the Bank will retain the 
Independent Financial Analyst. As stated previously, the Independent 
Financial Analyst may not derive more than 5 percent of its total 
annual revenues from the Bank or its affiliates, including its fee for 
serving as the Independent Financial Analyst. As for minimum 
credentials, the Independent Financial Analyst must be a Chartered 
Financial Analyst and employed by a firm which has at least a regional 
presence in the investment products and services industry. In addition, 
the individual assigned the duties of the Independent Financial Analyst 
must alone, or with his or her employer, have a certain minimum number 
of years experience in the investment products and services industry 
and must not be affiliated with the Bank, BOSC or BISYS.
    Should the Bank replace the Independent Financial Analyst, that 
entity must meet the same requirements applicable to the current 
Independent Financial Analyst. Under such circumstances, the Bank will 
be required to inform the Department 60 days in advance of the change. 
In addition, the Bank will also be required to describe the 
qualifications of the successor. Unless the Department objects to the 
change within 60 days of notification, the Foundations Program will 
continue to operate with the new Independent Financial Analyst.
    13. On an annual basis, the Independent Financial Analyst will 
determine whether the use of a Third Party Fund during the previous 
year has satisfied the selection criteria set forth in Representation 
11. (To recap, no Affiliated Fund is in existence and if in existence, 
the Affiliated Fund is not equivalent to the Third Party Fund.) The 
Independent Financial Analyst will also determine that the Third Party 
Fund considered by the Bank represents the correct Asset Segment based 
upon Morningstar or Lipper classifications. If the Independent 
Financial Analyst determines that a Third Party Fund has been used 
under circumstances which do not satisfy these criteria, an appropriate 
Affiliated Fund will be substituted after appropriate notice (i.e., the 
Termination Advisory) is given to the Primary Independent Fiduciary or 
the Directing Independent Fiduciary, if applicable. (See Representation 
14.)
    Additionally, the Independent Financial Analyst will review the 
Funds each time the Bank determines to add a Third Party Fund or 
replace an Affiliated Fund with a Third Party Fund. In this regard, the 
Independent Financial Analyst will be required to certify that the 
proposed change satisfies the ``in existence'' and ``equivalence'' 
criteria set forth above in Representation 11 before the effective date 
of the change.
    Further, the Independent Financial Analyst will be required to 
determine that for an Asset Segment there is no overlap between a Third 
Party Fund and an Affiliated Fund. Specifically, the Independent 
Financial Analyst will determine (a) that the array of Third

[[Page 42256]]

Party and Affiliated Funds does not include two or more Funds which are 
in the same classification under both the Morningstar and Lipper 
classification systems; and (b) that no Third Party Fund which is to be 
added is in the same Asset Class as an existing Affiliated Fund under 
both the Morningstar and Lipper classification systems.
    14. If the Investment Management Group determines that an 
Affiliated Fund or a Third Party Fund should be replaced with another 
Fund, the Bank will give written notice to the Primary Independent 
Fiduciary of each participating Plan which is invested in the affected 
Asset Allocation Model at least 30 days in advance of the effective 
date of the Fund change. If requested by the Primary Independent 
Fiduciary, the Bank will also provide this notice to each Directing 
Independent Fiduciary. The notice will also include a Termination 
Advisory that will advise the Primary Independent Fiduciary of the 
right to withdraw from the Foundations Program or allow the Directing 
Independent Fiduciary to transfer to a different Asset Allocation Model 
without penalty.
Fee Structure
    15. As to each investing Plan, the total fees that are paid to the 
Bank and its affiliates will constitute no more than reasonable 
compensation for the services provided to the participating Plans. In 
this regard, the Bank and its affiliates will receive four types of 
fees: (a) Advisory Fees from the Affiliated Funds,\9\ (b) Non-Advisory 
Fees from the Affiliated Funds (i.e., Administrative Fees), (c) 
Administrative Fees from the Third Party Funds, and (d) the Wrap Fee 
paid by each participating Plan at the Plan-level. All fees received 
from sources other than the participating Plan or the Plan's sponsor 
will be applied to offset the Plan's legal obligation to the Bank and 
its affiliates. Under no circumstances will such fees increase the 
compensation received by the Bank or its affiliates.\10\
---------------------------------------------------------------------------

    \9\ It should be noted that Advisory Fees may also be paid by 
the Affiliated Funds to unrelated sub-advisers who may be retained 
by the Bank in the future to perform investment management and/or 
advisory services to Plans investing under the Foundations Program. 
These sub-advisory fees are not applied to offset the Plan's legal 
obligation to the Bank and should be considered by the appropriate 
Plan fiduciary in evaluating the appropriateness of the Foundations 
Program.
    \10\ The fact that certain transactions and fee arrangements are 
the subject of an administrative exemption does not relieve the 
fiduciaries of the Plans from the general fiduciary responsibility 
provisions of section 404 of the Act. Thus, the Department cautions 
Primary Independent Fiduciaries of Plans investing in the Funds that 
they have an ongoing duty under section 404 of the Act to monitor 
the services provided to the Plans to assure that the services 
remain appropriate and that the fees paid by the Plans for such 
services are reasonable in relation to the value of the services 
provided. In considering whether to enter into the arrangement for 
the provision of asset allocation services, the Department 
emphasizes that it expects the Primary Independent Fiduciary to 
fully understand the operation of the Foundations Program and the 
compensation paid thereunder, following disclosure by the Bank of 
all relevant information pertaining to the Program.
---------------------------------------------------------------------------

    (a) Advisory Fees. The annualized Advisory Fees of the Affiliated 
Funds, which range from 0.40 percent to 0.69 percent, are calculated 
daily and paid monthly on the Affiliated Fund's average daily net 
assets. However, the Bank may, from time to time, waive all or a 
portion of the Advisory Fee. Each fee arrangement between the Bank and 
an Affiliated Fund must be approved by the Board of Trustees of the 
Affiliated Fund, including a majority of the Trustees who are not 
``interested persons.''
    (b) Administrative Fees from the Affiliated Funds and BISYS. The 
Bank is compensated for acting as custodian to the Affiliated Funds. 
For its custodial services, the Bank currently receives an annual fee 
of 0.03 percent of the average daily net assets of each of the 
Affiliated Funds.
    In addition, the Bank may receive Administrative Fees from BISYS in 
the form of annualized Rule 12b-1 Fees, pursuant to each Affiliated 
Fund's Distribution Plan. Such Rule 12b-1 Fees will not exceed 0.25 
percent of the average daily net assets of each Affiliated Fund.\11\
---------------------------------------------------------------------------

    \11\ Under each Affiliated Fund's Distribution Plan, the Fund 
pays BISYS Rule 12b-1 Fees on a monthly basis [see Representation 
1(c)] in order to provide distribution assistance to, or compensate 
financial intermediaries, broker-dealers or similar entities 
(including the Bank and affiliates or subsidiaries of BISYS and/or 
the Bank) for providing shareholder services.
---------------------------------------------------------------------------

    Further, BISYS currently retains the Bank as sub-administrator to 
the Affiliated Funds. BISYS presently pays the Bank an annualized fee 
of 0.05 percent of each Affiliated Fund's daily net assets.
    (c) Administrative Fees from the Third Party Funds. The Third Party 
Funds may pay Administrative Fees such as Rule 12b-1 Fees or similar 
fees to the Bank or its affiliates for shareholder services (e.g., fund 
recordkeeping, accounting in connection with a participating Plan's 
purchase or redemption of shares of the Third Party Fund, processing 
purchase and redemption transactions involving the Plans and providing 
mutual fund enrollment material to Primary or Directing Independent 
Fiduciaries). The annualized Administrative Fees range from 0.08 
percent to 0.50 percent.
    (d) The Plan-Level Wrap Fee. For their asset allocation, custodial 
and related services, the Bank, BOSC, and/or their affiliates will 
charge each participating Plan an annual investment fee (i.e., the Wrap 
Fee). If the Plan's average daily value (including amounts invested in 
either the Third Party Funds or Affiliated Funds) is less than $25,000, 
the Wrap Fee will equal 1.80 percent of $25,000, unless the minimum 
investment amount is lowered, in which case the Wrap Fee will equal 
1.80 percent of the minimum investment. For balances greater than the 
minimum investment, the fee will be calculated as follows: 1.80 percent 
on $1-$99,999; 1.55 percent on $100,000-$249,999; and 1.45 percent on 
any balance above $250,000. Breakpoints will be calculated on a per-
participating Plan basis rather than on each account in that Plan.
    From time to time, the Bank may increase or reduce the Wrap Fee. In 
the event of a Wrap Fee increase, the Bank will notify the Primary 
Independent Fiduciary or, if applicable, the Directing Independent 
Fiduciary, of the impending increase at least 30 days prior to its 
effective date of the change. The written notification will include a 
Termination Advisory and remind the Primary Independent Fiduciary of 
the impending increase at least 30 days prior to its effective date. 
The written notification will include a Termination Advisory which will 
(a) advise the Primary Independent Fiduciary or the Directing 
Independent Fiduciary of the right to withdraw from the Foundations 
Program without penalty; and (b) state that absent any affirmative 
action by the Primary Independent Fiduciary or the Directing 
Independent Fiduciary, the new Wrap Fee will be effective no earlier 
than 30 days after the receipt of the notice and the Termination 
Advisory.
    The Wrap Fee is assessed quarterly in arrears on the Plan's average 
daily net asset value during the quarter. The Wrap Fee will be deducted 
directly from the Plan.
Fund Fees and Offset
    16. As noted in Representation 15, the Bank and its affiliates may 
receive, either directly or indirectly, various fees from the 
Affiliated Funds and the Third Party Funds which will be fully 
disclosed to investors in applicable prospectuses. The Bank proposes to 
offset all Advisory Fees, Administrative Fees and Rule 12b-1 Fees that 
are paid to it and its affiliates with respect to a Plan's investment 
in a Fund (collectively, the Offset Fees), from the

[[Page 42257]]

quarterly Wrap Fee charged to that Plan. The Bank believes that the 
offset will eliminate any conflict of interest which may exist as a 
result of the fact that an investment in certain Funds would generate 
higher overall fees for the Bank and its affiliates, and will also 
eliminate any indirect benefit that the Bank may gain by including 
Funds that pay higher Advisory or Administrative Fees in the Asset 
Allocation Models.
    The Bank will deduct the Offset Fees as follows. At the end of each 
quarter, the Bank will calculate the revenues that it received during 
the quarter in the form of Offset Fees on a pro rata basis for each 
Plan invested in the Foundations Program. These figures will be a 
percentage of the average daily net value of participating Plan assets 
in each Affiliated and Third Party Fund. The Bank will reduce the Wrap 
Fee charged to each Plan for that quarter by that Plan's allocable 
portion of the Offset Fees for the Asset Allocation Model in which the 
Plan's assets were invested during the quarter. Thus, the sum of the 
Wrap Fee which the Bank and its affiliates actually receive with 
respect to each Plan (following the offset) and the Offset Fees will 
always equal the total Wrap Fee to which the Primary Independent 
Fiduciary agreed to in the Account Agreement and the selection of 
Affiliated or Third Party Funds will always be revenue-neutral.
    17. The Bank has provided the following example to demonstrate how 
the Offset Fee mechanism will work:

    Mr. Smith meets with a Bank investment counselor on April 3, 
2000. After going through the education, profiling and 
recommendation process, he decides to invest his IRA through the 
Foundations Program. Mr. Smith accepts the Bank's recommendation 
that, based on the results of his Investor Profile, the Growth and 
Income Model is the appropriate vehicle for the IRA. So, on April 3, 
2000, Mr. Smith invests $47,928.76 in that Asset Allocation Model. 
This initial investment is allocated as follows:

----------------------------------------------------------------------------------------------------------------
                                                    Allocation
                      Fund                           (percent)     Dollar amount       Price          Shares
----------------------------------------------------------------------------------------------------------------
American Performance Treasury Money Market......               5       $2,396.44           $1.00       2,396.440
American Performance Short-Term Income Fund.....              10        4,792.88           10.02         478.331
American Performance Intermediate Bond Fund.....               5        2,396.44           10.36         231.317
American Performance Bond Fund..................               5        2,396.44            9.53         251.463
Federated GNMA Fund.............................              10        4,792.88           11.32         423.399
Federated Bond Fund.............................              10        4,792.88           10.05         476.903
Federated Equity Income Fund....................               9        4,313.59           19.21         224.549
American Performance Equity Fund................              29       13,899.34           17.96         773.905
American Performance Growth Equity Fund.........               9        4,313.57           12.12         355.905
Templeton Foreign Fund..........................               3        1,437.86           11.10         129.537
Neuberger & Berman Genesis Assets Fund..........               5        2,396.44           14.33         167.232
                                                 ---------------------------------------------------------------
    Total.......................................             100       47,928.76  ..............  ..............
----------------------------------------------------------------------------------------------------------------

Wrap Fee

    Three business days prior to the end of the calendar quarter 
(i.e., June 28, 2000), the Bank takes the following steps to 
calculate the fee charged to Mr. Smith's account for the second 
quarter of 2000:
    <bullet> The Bank calculates the average balance of Mr. Smith's 
account during the quarter as $48,124.44.
    <bullet> The annual Wrap Fee on accounts of up to $99,000 is 
1.80 percent. Therefore, the quarterly fee is 45 basis points or 
0.45 percent of the average daily balance during the quarter. Mr. 
Smith's quarterly Wrap Fee is $216.56 ($48,124.44  x  0.45%). This 
amount is deducted from the account based on the Fund/fee hierarchy. 
\12\ The Fund/fee hierarchy determines which position(s) will be 
liquidated to pay fees. Because Mr. Smith has enough assets in the 
American Performance Treasury Money Market Fund to pay the fee, a 
liquidation of $216.56 is posted to this Fund.
---------------------------------------------------------------------------

    \12\ It is represented that Funds are liquidated to pay fees in 
the following order: American Performance U.S. Treasury Fund, 
American Performance Intermediate Bond Fund, American Performance 
Bond Fund, Federated Bond Fund, Federated GNMA Trust Fund, Federated 
Equity Income Fund, American Performance Equity Fund, Templeton 
Foreign Fund, Neuberger and Berman Genesis Asset Fund and the 
American Performance Aggressive Growth Fund.
    Because each Asset Allocation Model, other than the Aggressive 
Growth Model, includes an investment in a money market fund, the 
Bank anticipates that almost all of the Wrap Fee will be taken from 
the American Performance Treasury Money Market Fund. An Account's 
entire holding in a particular Fund will be liquidated before any 
portion of the next Fund in the hierarchy is liquidated. If the 
liquidation is more than $1,000, the Account automatically will be 
rebalanced. If the liquidation is for $100 to $1,000, the Account 
will be rebalanced at the next quarter's end. If the liquidation is 
for less than $100, the Account will not be rebalanced on account of 
the fee payment, although it may be rebalanced in the regular course 
of the Foundations Program.
---------------------------------------------------------------------------

Offset Fees

    <bullet> The Bank prepares a spreadsheet detailing the 
annualized compensation it received from the Affiliated Funds and 
the Third Party Fund during the quarter. For example,

------------------------------------------------------------------------
                                            Allocation     Basis points
                  Fund                       (percent)       received
------------------------------------------------------------------------
American Performance Treasury Money                    5               2
 Market.................................
American Performance Short-Term Income                10               1
 Fund...................................
American Performance Intermediate Bond                 5               3
 Fund...................................
American Performance Bond Fund..........               5               3
Federated GNMA Fund.....................              10               3
Federated Bond Fund.....................              10               3
Federated Equity Income Fund............               9               2
American Performance Equity Fund........              29              24
American Performance Growth Equity Fund.               9               7
Templeton Foreign Fund..................               3               1
Neuberger & Berman Genesis Assets Fund..               5               3
                                         -------------------------------
    Total...............................             100              52
------------------------------------------------------------------------


[[Page 42258]]

    <bullet> The rebate to be credited to Mr. Smith's account is 
calculated by multiplying his average daily balance ($48,124.44) by 
the basis points received (52) and then dividing the result by 4. 
The rebate ($62.56) [($48,124.44  x  0.52%/4)] is credited to the 
American Performance Treasury Money Market Fund. \13\
---------------------------------------------------------------------------

    \13\ For each Fund represented in the foregoing Asset Allocation 
Model, the Bank will determine the total number of basis points 
received on an annual basis from all fee sources within that Fund. 
As noted above, these fees include Rule 12b-1 Fees, Advisory Fees 
and Administrative Fees. For example, for the American Performance 
Equity Fund, the total annual basis points received is 83.
    The Bank will then multiply this amount (83) by the percentage 
of the Fund contained in the Asset Allocation Model. In this Asset 
Allocation Model, 29 percent of the investor's money is allocated to 
the American Performance Equity Fund. Accordingly, under the Bank's 
fee-offset arrangement, 29 percent of 83 basis points (or 24 basis 
points) will be rebated to Mr. Smith's account.
    The Bank represents that this method of allocation will be 
repeated for all Funds shown in this particular Asset Allocation 
Model. The total rebated amounts attributable to each Fund will be 
added together to arrive at the total number of basis points that 
will be rebated to investors in this Asset Allocation Model. 
Accordingly, Mr. Smith and other investors in this Asset Allocation 
Model, will be rebated 52 basis points on an annual basis.
    In addition, Mr. Smith and other investors will receive full 
disclosure from the Bank regarding the fees and the fee-offset 
arrangement, including the actual number of basis points to be 
rebated under an applicable Allocation Model. To show how the rebate 
is calculated, a spreadsheet will be utilized. Finally, an investor 
will see rebated amounts in their performance statements. (See also 
Representations 6 and 18.)
---------------------------------------------------------------------------

Disclosures
    18. Aside from the Investor Profile described in Representation 6, 
Primary Independent Fiduciaries and Directing Independent Fiduciaries 
will receive several types of disclosures: (a) Initial disclosures 
which are made to the Primary Independent Fiduciary and, if applicable, 
the Directing Independent Fiduciary before a Plan is enrolled under the 
Foundations Program; (b) subsequent disclosures which are made 
exclusively to the Primary Independent Fiduciary; (c) specific 
disclosures which are made to the Primary Independent Fiduciary or the 
Directing Independent Fiduciary; and (d) continuing disclosures that 
are made to the Primary Independent Fiduciary or the Directing 
Independent Fiduciary throughout the time that the participating Plan 
is enrolled under the Foundations Program.
    (a) Initial Disclosures for the Primary Independent Fiduciary or 
the Directing Independent Fiduciary. Before a Plan's assets are 
invested under the Foundations Program, the Primary Independent 
Fiduciary or, if applicable, the Directing Independent Fiduciary, will 
receive a brochure describing the Foundations Program, a Foundations 
Asset Allocation Account Application, a Foundations Asset Allocation 
Purchase Order, and a Foundations Program Account Agreement. The 
Account Agreement will provide detailed information on the Foundations 
Program, including the way in which fees are calculated and charged, 
the procedure for and limitations on the Bank's ability to make Model 
Adjustments and its rebalancing of a participating Plan, and the 
procedure to be followed in the event that the Primary or Directing 
Independent Fiduciary objects to a Model Adjustment. In addition, the 
Bank will disclose, through the Form ADV-Part II, its affiliation or 
non-affiliation with the Funds to the Primary Independent Fiduciary 
prior to such fiduciary's enrolling an eligible Plan in the Program. 
Further, the Bank will provide to the Primary Independent Fiduciary the 
executed Account Agreement and copies of the proposed exemption and the 
grant notice. Assuming the Bank provides copies of the proposed 
exemption and the grant notice directly to the Primary Independent 
Fiduciary, such disclosures may be distributed by the Primary 
Independent Fiduciary to the Directing Independent Fiduciaries.
    To participate in the Foundations Program, the Primary Independent 
Fiduciary will submit a completed Account Agreement to the Bank. In 
addition, the Primary Independent Fiduciary will be required to 
represent in writing that such fiduciary is (1) independent of the Bank 
and its affiliates; (2) knowledgeable with respect to the Plan in 
administrative matters; (3) able to make an informed decision 
concerning the participating Plan's participation in the Foundations 
Program; and (4) knowledgeable with respect to funding matters related 
to the Plan.
    Once the Plan is enrolled in the Foundations Program, the Primary 
Independent Fiduciary or, if applicable, the Directing Independent 
Fiduciary, will complete an Investor Profile and submit it to an 
investment counselor in the manner described herein in Representation 
6.
    (b) Subsequent Disclosures Exclusively for the Primary Independent 
Fiduciary. In addition to the initial disclosures described above in 
Representation 18(a), the Bank will provide each Primary Independent 
Fiduciary with the following materials and/or oral disclosures: (1) A 
copy of the executed Account Agreement between the Plan and the Bank; 
and (2) a description of the Bank's affiliation, if any, with the 
sponsors, distributors, administrators, investment advisers, sub-
advisers, custodians and transfer agents of each Affiliated and Third 
Party Fund. In addition, the Primary Independent Fiduciary will 
acknowledge in writing that he or she has received copies of the 
aforementioned documents prior to investing in the Foundations Program.
    (c) Specific Disclosures for the Primary Independent Fiduciary or 
the Directing Independent Fiduciary. The Bank will provide each Primary 
Independent Fiduciary or Directing Independent Fiduciary with the 
following materials and/or oral disclosures prior to investing in an 
Asset Allocation Model: (1) a written analysis based on such 
fiduciary's Investor Profile, (2) a description of the Asset Allocation 
Model recommended by the Bank's investment counselor, which includes a 
description of the actual fee structure and the actual number of basis 
points that will be rebated to such Plan fiduciary; (3) a prospectus 
for each Affiliated Fund and Third Party Fund in which the Plan may be 
invested, showing, among other things, the internal fees for the Fund; 
and (4) upon the request of the Primary Independent Fiduciary or the 
Directing Independent Fiduciary, a Statement of Additional Information 
which supplements the prospectus. The Primary Independent Fiduciary or 
the Directing Independent Fiduciary will also acknowledge in writing to 
the Bank that he or she has received copies of the aforementioned 
documents prior to the Plan's investment in an Asset Allocation Model.
    (d) Continuing Disclosures for the Primary Independent Fiduciary or 
the Directing Independent Fiduciary. In addition to the disclosures 
described above, the Bank will provide each Primary Independent 
Fiduciary and Directing Independent Fiduciary with the following 
continuing disclosures: (1) Copies of applicable prospectuses; (2) 
written confirmation of each purchase and redemption of shares of an 
Affiliated Fund or a Third Party Fund, including transactions 
implemented as a result of a realignment of the Asset Allocation 
Model's investment mix or from the rebalancing of a participating 
Plan's investments in conformity with the selected Asset Allocation 
Model; (3) telephone quotations of the Plan's balance under the 
Foundations Program; (4) periodic, but at least quarterly, account 
statements showing the Plan's value, a summary of purchase, sale and 
exchange activity and dividends received or reinvested, a summary of 
cumulative realized gain and/or loss, and rebated amounts; (5) 
semiannual or annual reports that include financial

[[Page 42259]]

statements for the Funds, as well as a description of the fees that are 
paid by the Funds to the Bank and its affiliates; (6) at least 
annually, a written or oral inquiry from the Bank to ascertain whether 
information provided on the Investor Profile is still accurate and to 
determine if such information should be updated; (7) an annual 
Termination Advisory; and (8) the Bank's investment advisory and other 
agreements with any Affiliated Fund as well as its distribution 
agreement pertaining to the Third Party Funds, upon request. 
Communications received from the Funds will be distributed to the 
Primary Independent Fiduciary, who may elect to pass this information 
through to Directing Independent Fiduciaries.
    Finally, for a period of six years, the Bank will maintain records 
necessary to enable the Department, Plan fiduciaries, participants and 
others to determine whether the conditions of the requested exemption 
have been met.
More Steering Concerns
    19. The Applicants state that the Asset Allocation Models used in 
the Foundations Program were designed to meet very specific risk 
tolerances and investment objectives developed by Morningstar and 
Lipper. The Applicants note that each Asset Segment in an Asset 
Allocation Model performs a role in addressing those tolerances and 
objectives. In this regard, the Applicants explain that each Asset 
Segment is represented by only one Fund--an Affiliated Fund or a Third 
Party Fund. Therefore, the Applicants state that the Bank cannot steer 
assets within an Asset Allocation Model to a Third Party Fund rather 
than an Affiliated Fund representing the same Asset Segment.
    20. In summary, the Applicants represent that the proposed 
transactions will satisfy the statutory criteria for an administrative 
exemption under section 408(a) of the Act because:
    (a) The investment of a Plan's assets under the Foundations Program 
will be made by a Primary Independent Fiduciary or a Directing 
Independent Fiduciary who is independent of the Bank and its affiliates 
such that the Plan fiduciary will maintain complete discretion with 
respect to participating under the Foundations Program.
    (b) No Plan will pay a fee or commission by reason of the 
acquisition or redemption of shares of the Funds.
    (c) As to each Plan, the total fees that are paid to the Bank and 
its affiliates will constitute no more than reasonable compensation for 
the services provided.
    (d) Prior to investing under the Foundations Program, each Primary 
Independent Fiduciary or Directing Independent Fiduciary will receive 
offering materials and disclosures from the Bank which set forth all 
material facts concerning the purpose, fee structure, rebate 
arrangement, operation, rebalancing, risks and participation in such 
Program.
    (e) The Bank will provide written documentation to a Primary 
Independent Fiduciary or a Directing Independent Fiduciary of its 
recommendations based upon objective criteria that will be uniformly 
applied.
    (f) The quarterly Wrap Fee that is paid by a Plan to the Bank for 
asset allocation and related services rendered to such Plan under the 
Portfolio Advisor Program will be offset by--(1) All Advisory Fees 
received by the Bank and/or its affiliates from the Affiliated Funds; 
(2) all Administrative Fees that are received by the Bank from the 
Affiliated Funds; and (3) all Administrative Fees that are paid by the 
Third Party Funds to the Bank and/or its affiliates, such that the sum 
of the Wrap Fee and the Offset Fees will always equal the total Wrap 
Fee and the selection of Affiliated or Third Party Funds will always be 
revenue-neutral.
    (g) No Plan assets will be invested according to a Model Adjustment 
without the consent of the Primary Independent Fiduciary if the Model 
Adjustment is outside the range specified in the Account Agreement.
    (h) The periodic rebalancing of a Plan investor's account will not 
involve an exercise of discretionary management or control over the 
Plan by the Bank.
    (i) The Bank will retain the Independent Financial Analyst to (1) 
review the investment of Plan assets in a Third Party Fund to ensure 
adequate performance and suitability, (2) review the Funds each time 
the Bank determines to add a Third Party Fund or replace an Affiliated 
Fund with a Third Party Fund; and (3) ensure that there is no overlap 
between the Funds.
    (j) Although the Primary Independent Fiduciary or the Directing 
Independent Fiduciary may withdraw from the Foundations Program at any 
time, any authorizations made by such Plan investors with respect to 
increases in the Wrap Fee, Model Adjustments that are outside of an 
Asset Allocation Model, the addition or substitution of a Fund, will be 
terminable at will and without penalty to the Plan.
    (k) Each Primary Independent Fiduciary or Directing Independent 
Fiduciary will receive ongoing disclosures from the Bank regarding the 
continued participation of the Plan in the Foundations Program.
    (l) All dealings between a Plan, the Funds and the Bank will remain 
on a basis which is at least as favorable to the Plan as such dealings 
are with other shareholders of the Funds holding the same classes of 
shares as the Plan.

Notice to Interested Persons

    The Applicants represent that because potentially interested 
participants and beneficiaries of eligible Plans which might choose to 
participate in the Foundations Program cannot be identified at this 
time, the only practical means of notifying such participants and 
beneficiaries of this proposed exemption is by publication of the 
notice of pendency in the Federal Register. Therefore, comments and 
requests for a hearing must be received by the Department no later than 
30 days from the date of the publication of this notice of proposed 
exemption in the Federal Register.
    For Further Information Contact: Ms. Jan D. Broady of the 
Department, telephone (202) 219-8881. (This is not a toll-free number.)

First Tennessee National Corporation Located in Memphis, Tennessee

[Application No. D-10898]

Proposed Exemption

I. Transactions

    A. 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
    (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

[[Page 42260]]

with respect to the assets of that Excluded Plan.\14\
---------------------------------------------------------------------------

    \14\ Section 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).
---------------------------------------------------------------------------

    B. 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.\15\ 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;
---------------------------------------------------------------------------

    \15\ For purposes of this proposed 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.
---------------------------------------------------------------------------

    (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. 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.\16\
---------------------------------------------------------------------------

    \16\ 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.
---------------------------------------------------------------------------

    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. 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 
from a rating agency (as defined in section III.W.) at the time of such 
acquisition that is in one of the three highest generic rating 
categories;
    (4) The trustee is not an affiliate of any other 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;
    (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; 
and
    (7) In the event that the obligations used to fund a trust have not 
all been transferred to the trust on the closing date, additional 
obligations as specified in subsection III.B.(1) may be transferred to 
the trust during the pre-funding period (as defined in section III.BB.) 
in exchange for amounts credited to the pre-funding account (as defined 
in section III.Z.), provided that:
    (a) The pre-funding limit (as defined in section III.AA.) is not 
exceeded;
    (b) All such additional obligations meet the same terms and 
conditions for eligibility as those of the original obligations used to 
create the trust corpus (as described in the prospectus or private 
placement memorandum and/or pooling and servicing agreement for

[[Page 42261]]

such certificates), 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 of the outstanding 
certificateholders or by a rating agency;
    (c) The transfer of such additional obligations to the trust during 
the pre-funding period does not result in the certificates 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 certificates by the trust;
    (d) The weighted average annual percentage interest rate (the 
average interest rate) for all of the obligations in the trust 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 trust 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 be either 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 trustees) 
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, will enforce all the rights created in favor 
of certificateholders of such trust, including employee benefit plans 
subject to the Act.
    B. Neither any underwriter, sponsor, trustee, servicer, insurer, 
nor 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 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 proposed 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 pass-through 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) or a Financial Asset Securitization 
Investment Trust (FASIT) within the meaning of section 860D(a) or 
section 860L, respectively, 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 FTNC or 
any of its affiliates is either (i) the sole underwriter or the manager 
or co-manager of the underwriting syndicate, or (ii) a selling or 
placement agent.
    For purposes of this proposed 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)(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, as defined in section III.T); 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 commercial real property (including obligations secured 
by leasehold interests on 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 (as defined in section III.U); and/or
    (e) ``Guaranteed governmental mortgage pool certificates,'' as 
defined in 29 CFR 2510.3-101(i)(2); and/or
    (f) Fractional undivided interests in any of the obligations 
described in clauses (a)-(e) of this section B.(1);
    (2) Property which had secured any of the obligations described in 
subsection B.(1);
    (3)(a) Undistributed cash or temporary investments made therewith 
maturing no later than the next date on which distributions are to made 
to certificateholders; and/or
    (b) Cash or investments made therewith which are credited to an 
account to provide payments to certificateholders pursuant to any yield 
supplement agreement or similar yield maintenance arrangement to 
supplement the interest rates otherwise payable on obligations 
described in subsection III.B.(1) held in the trust, provided that such 
arrangements do not involve swap agreements or other notional principal 
contracts; and/or
    (c) Cash transferred to the trust 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 clauses (a)-(g) of subsection II.A.(7) are met and/or;
    (ii) Are credited to a capitalized interest account (as defined in 
section III.X.); and
    (iii) Are held in the trust for a period ending no later than the 
first distribution date to certificateholders occurring after the end 
of the pre-funding period.

[[Page 42262]]

    For purposes of this clause (c) of subsection III.B.(3), the term 
``permitted investments'' means investments which are either: (i) 
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 (ii) have been 
rated (or the obligor has been rated) in one of the three highest 
generic rating categories by a rating agency; are described in the 
pooling and servicing agreement; and are permitted by the rating 
agency; and
    (4) rights of the trustee under the pooling and servicing 
agreement, and rights under any insurance policies, third-party 
guarantees, contracts of suretyship, yield supplement agreements 
described in clause (b) of subsection III.B.(3) and other credit 
support arrangements with respect to any obligations described in 
subsection III.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 described in clauses (a) through (f) of subsection 
III.B.(1) 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 a 
rating agency for at least one year prior to the plan's acquisition of 
certificates pursuant to this proposed 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 
proposed exemption.
    C. ``Underwriter'' means:
    (1) First Tennessee National Bank (the Bank) or First Tennessee 
Securities Corporation (FTSC);
    (2) Any person directly or indirectly, through one or more 
intermediaries, controlling, controlled by or under common control with 
FTNC; or
    (3) Any member of an underwriting syndicate or selling group of 
which FTNC 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 obligations contained in 
the trust, but is not a party to the pooling and servicing agreement.
    G. ``Servicer'' means any entity which services obligations 
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;
    (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 proposed 
exemption (if granted) 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:

[[Page 42263]]

    (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 owns or holds a security interest in the lease;
    (2) The trust owns or 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. ``Rating Agency'' means 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 IBCA, Inc. (Fitch), or their 
successors.
    X. ``Capitalized Interest Account'' means a trust account: (i) 
which is established to compensate certificateholders for shortfalls, 
if any, between investment earnings on the pre-funding account and the 
pass-through rate payable under the certificates; and (ii) which meets 
the requirements of clause (c) of subsection III.B.(3).
    Y. ``Closing Date'' means the date the trust is formed, the 
certificates are first issued and the trust'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 trust.
    Z. ``Pre-Funding Account'' means a trust account: (i) which is 
established to purchase additional obligations, which obligations meet 
the conditions set forth in clauses (a)-(g) of subsection II.A.(7); and 
(ii) which meets the requirements of clause (c) of subsection 
III.B.(3).
    AA. ``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 certificates being offered which is less than 
or equal to 25 percent.
    BB. ``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 90 days after the closing date.
    CC. ``FTNC'' means First Tennessee National Corporation, a 
Tennessee corporation, and its affiliates.
    The Department notes that this proposed 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 (see 60 FR at 35932).

Summary of Facts and Representations

    1. FTNC, a Tennessee corporation, is a Memphis, Tennessee based 
bank holding company, which has assets of over $18 billion and through 
its subsidiaries, including the Bank, operates 419 branches in various 
cities in Tennessee, Arkansas and Mississippi. FTNC also owns and 
operates subsidiaries that engage in trust, brokerage, investment 
management, mortgage banking and consumer finance, including First 
Tennessee ABS, Inc.
    FTSC is a subsidiary of the Bank. On April 12, 1999, the Office of 
the Controller of the Currency (OCC) granted approval for the Bank to 
establish FTSC as a wholly-owned subsidiary of the Bank. The OCC 
approval permitted FTSC to engage in certain securities activities 
which are permissible for national banks to engage in directly, and 
also to underwrite and deal in municipal revenue bonds. On January 28, 
2000, the OCC granted approval for FTSC to expand its activities in 
underwriting and dealing activities with respect to all types of debt 
and equity securities other than interests in open-end investment 
companies. On March 13, 2000, the OCC approved a certification and 
notice filed by the Bank for FTSC to become a ``financial subsidiary'' 
as permitted by the Gramm-Leach-Bliley Act (G-L-B Act) and OCC 
regulation. As a financial subsidiary, FTSC may conduct securities 
activities which are permissible for the Bank to engage in directly as 
well as securities activities which the G-L-B Act has defined as 
``financial in nature,'' such as underwriting, dealing in, and making a 
market in, all types of securities, including interests in open-end 
investment companies.

Trust Assets

    2. FTNC seeks exemptive relief to permit plans to invest in pass-
through certificates representing undivided interests in the following 
categories of trusts: (1) Single and multi-family residential or 
commercial mortgage investment trusts; \17\ (2) motor vehicle 
receivable investment trusts; (3) consumer or commercial receivables 
investment trusts; and (4) guaranteed governmental mortgage pool 
certificate investment trusts.\18\
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    \17\ The Department notes that PTE 83-1 [48 FR 895, January 7, 
1983], a class exemption for mortgage pool investment trusts, would 
generally apply to trusts containing single-family residential 
mortgages, provided that the applicable conditions of PTE 83-1 are 
met. FTNC requests relief for single-family residential mortgages in 
this exemption because it would prefer one exemption for all trusts 
of similar structure. However, FTNC has stated that it may still 
avail itself of the exemptive relief provided by PTE 83-1.
    \18\ Guaranteed governmental mortgage pool certificates are 
mortgage-backed securities with respect to which interest and 
principal payable is guaranteed by the Government National Mortgage 
Association (GNMA), the Federal Home Loan Mortgage Corporation 
(FHLMC), or the Federal National Mortgage Association (FNMA). The 
Department's regulation relating to the definition of ``plan 
assets'' (29 CFR 2510.3-101(i)) provides that where a plan acquires 
a guaranteed governmental mortgage pool certificate, the plan's 
assets include the certificate and all of its rights with respect to 
such certificate under applicable law, but do not, solely by reason 
of the plan's holding of such certificate, include any of the 
mortgages underlying such certificate. The applicant is requesting 
exemptive relief for trusts containing guaranteed governmental 
mortgage pool certificates because the certificates in the trusts 
may be plan assets.
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    3. Commercial mortgage investment trusts may include mortgages on 
ground leases of real property. Commercial mort gages are frequently 
secured by ground leases on the underlying property, rather than by fee 
simple interests. The separation of the fee simple interest and the 
ground lease interest is generally done for tax reasons. Properly 
structured, the pledge of the ground lease to secure a mortgage 
provides a lender with the same level of security as would be provided 
by a pledge of the related fee simple interest. The terms of the ground 
leases pledged to secure leasehold mortgages will in all cases be at 
least ten years longer than the term of such mortgages.\19\
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    \19\ Trust assets may also include obligations that are secured 
by leasehold interests on residential real property. See PTE 90-32 
involving Prudential-Bache Securities, Inc. (55 FR 23147, June 6, 
1990 at 23150).
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Trust Structure
    4. Each trust is established under a pooling and servicing 
agreement

[[Page 42264]]

between a sponsor, a servicer and a trustee.\20\ The sponsor or 
servicer of a trust selects assets to be included in the trust.\21\ 
These assets are receivables which may have been originated by a 
sponsor or servicer of the trust, an affiliate of the sponsor or 
servicer, or by an unrelated lender and subsequently acquired by the 
trust sponsor or servicer.\22\
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    \20\ The Department is of the view that the term ``trust'' 
includes a trust: (a) the assets of which, although all specifically 
identified by the sponsor or the originator as of the closing date, 
are not all transferred to the trust on the closing date for 
administrative or other reasons but will be transferred to the trust 
shortly after the closing date, or (b) with respect to which 
certificates are not purchased by plans until after the end of the 
pre-funding period at which time all receivables are contained in 
the trust.
    \21\ It is the Department's view that the definition of 
``trust'' contained in section 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.
    \22\ It is the view of the Department that section III.B.(4) 
includes within the definition of the term ``trust'' rights under 
any yield supplement or similar arrangement which obligates the 
sponsor or master servicer, or another party specified in the 
relevant pooling and servicing agreement, to supplement the interest 
rates otherwise payable on the obligations described in section 
III.B.(1), in accordance with the terms of a yield supplement 
arrangement described in the pooling and servicing agreement, 
provided that such arrangements do not involve swap agreements or 
other notional principal contracts.
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    Typically, on or prior to the closing date, the sponsor acquires 
legal title to all assets selected for the trust, establishes the trust 
and designates an independent entity as trustee. On the closing date, 
the sponsor conveys to the trust legal title to the assets, and the 
trustee issues certificates representing fractional undivided interests 
in the trust assets. Typically, all receivables to be held in the trust 
are transferred as of the closing date, but in some transactions, as 
described more fully below, a limited percentage of the receivables to 
be held in the trust may be transferred during a limited period of time 
following the closing date, through the use of a pre-funding account.
    FTNC, alone or together with other broker-dealers, acts as 
underwriter or placement agent with respect to the sale of the 
certificates. All of the public offerings of certificates presently 
contemplated are to be underwritten by FTNC on a firm commitment basis. 
In addition, FTNC anticipates that it may privately place certificates 
on both a firm commitment and an agency basis. FTNC may also act as the 
lead underwriter for a syndicate of securities underwriters.
    Certificateholders will be entitled to receive distributions of 
principal and/or interest, or lease payments due on the receivables, 
adjusted, in the case of payments of interest, to a specified rate--the 
pass-through rate--which may be fixed or variable. These distributions 
will be made monthly, quarterly, semi-annually, or at such other 
intervals and dates as specified in the related prospectus or private 
placement memorandum.
    When installments or payments are made on a semi-annual basis, 
funds are not permitted to be commingled with the servicer's assets for 
longer than would be permitted for a monthly-pay security. A segregated 
account is established in the name of the trustee (on behalf of 
certificateholders) to hold funds received between distribution dates. 
The account is under the sole control of the trustee, who invests the 
account's assets in short-term securities which have received a rating 
comparable to the rating assigned to the certificates. In some cases, 
the servicer may be permitted to make a single deposit into the account 
once a month. When the servicer makes such monthly deposits, payments 
received from obligors by the servicer may be commingled with the 
servicer's assets during the month prior to deposit. Usually, the 
period of time between receipt of funds by the servicer and deposit of 
these funds in a segregated account does not exceed one month. 
Furthermore, in those cases where distributions are made semi-annually, 
the servicer will furnish a report on the operation of the trust to the 
trustee on a monthly basis. At or about the time this report is 
delivered to the trustee, it will be made available to 
certificateholders and delivered to or made available to each rating 
agency that has rated the certificates.
    5. Some of the certificates will be multi-class certificates. FTNC 
requests exemptive relief for two types of multi-class certificates: 
``strip'' certificates and ``fast-pay/ slow-pay'' certificates. Strip 
certificates are a type of security in which the stream of interest 
payments on receivables is split from the flow of principal payments 
and separate classes of certificates are established, each representing 
rights to disproportionate payments of principal and interest.\23\
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    \23\ It is the Department's understanding that where a plan 
invests in REMIC ``residual'' interest certificates to which this 
exemption applies, some of the income received by the plan as a 
result of such investment may be considered unrelated business 
taxable income to the plan, which is subject to income tax under the 
Code. The Department emphasizes that the prudence requirement of 
section 404(a)(l)(B) of the Act would require plan fiduciaries to 
carefully consider this and other tax consequences prior to causing 
plan assets to be invested in certificates pursuant to this proposed 
exemption.
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    ``Fast-pay/slow-pay'' certificates involve the issuance of classes 
of certificates having different stated maturities or the same 
maturities with different payment schedules. Interest and/or principal 
payments received on the underlying receivables are distributed first 
to the class of certificates having the earliest stated maturity of 
principal, and/or earlier payment schedule, and only when that class of 
certificates has been paid in full (or has received a specified amount) 
will distributions be made with respect to the second class of 
certificates. Distributions on certificates having later stated 
maturities will proceed in like manner until all the certificateholders 
have been paid in full. The only difference between this multi-class 
pass-through arrangement and a single-class pass-through arrangement is 
the order in which distributions are made to certificateholders. In 
each case, certificateholders will have a beneficial ownership interest 
in the underlying assets. In neither case will the rights of a plan 
purchasing a certificate be subordinated to the rights of another 
certificateholder in the event of default on any of the underlying 
obligations. In particular, if the amount available for distribution to 
certificateholders is less than the amount required to be so 
distributed, all senior certificateholders then entitled to receive 
distributions will share in the amount distributed on a pro rata 
basis.\24\
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    \24\ If a trust issues subordinated certificates, holders of 
such subordinated certificates may not share in the amount 
distributed on a pro rata basis with the senior certificateholders. 
The Department notes that the proposed exemption does not provide 
relief for plan investment in such subordinated certificates.
---------------------------------------------------------------------------

    6. The trust will be maintained as an essentially passive entity. 
Therefore, both the sponsor's discretion and the servicer's discretion 
with respect to assets included in a trust are severely limited. 
Pooling and servicing agreements provide for the substitution of 
receivables by the sponsor only in the event of defects in 
documentation discovered within a short time after the issuance of 
trust certificates (within 120 days, except in the case of obligations 
having an original term of 30 years, in which case the period will not 
exceed two years). Any receivable so substituted is required to have 
characteristics substantially similar to

[[Page 42265]]

the replaced receivable and will be at least as creditworthy as the 
replaced receivable.
    In some cases, the affected receivable would be repurchased, with 
the purchase price applied as a payment on the affected receivable and 
passed through to certificateholders.
    In some cases the trust will be maintained as a Financial Asset 
Securitization Investment Trust (``FASIT''), a statutory entity created 
by the Small Business Job Protection Act of 1996, adding sections 860H, 
860J, 860K and 860L to the Code. In general, a FASIT is designed to 
facilitate the securitization of debt obligations, such as credit card 
receivables, home equity loans, and auto loans, and thus, allows 
certain features such as revolving pools of assets, trusts containing 
unsecured receivables and certain hedging types of investments. A FASIT 
is not a taxable entity and debt instruments issued by such trusts, 
which might otherwise be recharacterized as equity, will be treated as 
debt in the hands of the holder for tax purposes. However, a trust 
which is the subject of the proposed exemption will be maintained as a 
FASIT only where the assets held by the FASIT will be comprised of 
secured debt; revolving pools of assets or hedging investments will not 
be allowed unless specifically authorized by the exemption, if granted, 
so that a trust maintained as a FASIT will be maintained as an 
essentially passive entity.
Trust Structure With Pre-Funding Account
    Pre-Funding Accounts:
    7. As described briefly above, some transactions may be structured 
using a pre-funding account or a capitalized interest account. If pre-
funding is used, cash sufficient to purchase the receivables to be 
transferred after the closing date will be transferred to the trust by 
the sponsor or originator on the closing date. During the pre-funding 
period, such cash and temporary investments, if any, made therewith 
will be held in a pre-funding account and used to purchase the 
additional receivables, the characteristics of which will be 
substantially similar to the characteristics of the receivables 
transferred to the trust on the closing date. The pre-funding period 
for any trust will be defined as the period beginning on the closing 
date and ending on the earliest to occur of (i) the date on which the 
amount on deposit in the pre-funding account is less than a specified 
dollar amount, (ii) the date on which an event of default occurs under 
the related pooling and servicing agreement or (iii) the date which is 
the later of three months or ninety (90) days after the closing date. 
Certain specificity and monitoring requirements described below will be 
met and will be disclosed in the pooling and servicing agreement and/or 
the prospectus or private placement memorandum.
    For transactions involving a trust using pre-funding, on the 
closing date, a portion of the offering proceeds will be allocated to 
the pre-funding account generally in an amount equal to the excess of 
(i) the principal amount of certificates being issued over (ii) the 
principal balance of the receivables being transferred to the trust on 
such closing date. In certain transactions, the aggregate principal 
balance of the receivables intended to be transferred to the trust may 
be larger than the total principal balance of the certificates being 
issued. In these cases, the cash deposited in the pre-funding account 
will equal the excess of the principal balance of the total receivables 
intended to be transferred to the trust over the principal balance of 
the receivables being transferred on the closing date.
    On the closing date, the sponsor transfers the assets to the trust 
in exchange for the certificates. The certificates are then sold to an 
underwriter for cash or to the certificateholders directly if the 
certificates are sold through a placement agent. The cash received by 
the sponsor from the certificateholders (or the underwriter) from the 
sale of the certificates issued by the trust in excess of the purchase 
price for the receivables and certain other trust expenses, such as 
underwriting or placement agent fees and legal and accounting fees, 
constitutes the cash to be deposited in the pre-funding account. Such 
funds are either held in the trust and accounted for separately, or are 
held in a sub-trust. In either event, these funds are not part of 
assets of the sponsor.
    Generally, the receivables are transferred at par value, unless the 
interest rate payable on the receivables is not sufficient to service 
both the interest rates to be paid on the certificates and the 
transaction fees (i.e., servicing fees, trustee fees and fees to credit 
support providers). In such cases, the receivables are sold to the 
trust at a discount, based on an objective, written, mechanical formula 
which is set forth in the pooling and servicing agreement and agreed 
upon in advance between the sponsor, the rating agency and any credit 
support provider or other insurer. The proceeds payable to the sponsor 
from the sale of the receivables transferred to the trust may also be 
reduced to the extent they are used to pay transaction costs (which 
typically include underwriting or placement agent fees and legal and 
accounting fees). In addition, in certain cases, the sponsor may be 
required by the rating agencies or credit support providers to set up 
trust reserve accounts to protect the certificateholders against credit 
losses.
    The pre-funding account of any trust will be limited so that the 
percentage or ratio of the amount allocated to the pre-funding account, 
as compared to the total principal amount of the certificates being 
offered (the pre-funding limit) will not exceed 25%. The pre-funding 
limit (which may be expressed as a ratio or as a stated percentage or a 
combination thereof) will be specified in the prospectus or the private 
placement memorandum.
    Any amounts paid out of the pre-funding account are used solely to 
purchase receivables and to support the certificate pass-through rate 
(as explained below). Amounts used to support the pass-through rate are 
payable only from investment earnings and are not payable from 
principal. However, in the event that, after all of the requisite 
receivables have been transferred into the trust, any funds remain in 
the pre-funding account, such funds will be paid to the 
certificateholders as principal prepayments. Upon termination of the 
trust, if no receivables remain in the trust and all amounts payable to 
certificateholders have been distributed, any amounts remaining in the 
trust would be returned to the sponsor.
    A dramatic change in interest rates on the receivables held in a 
trust using a pre-funding account would be handled as follows. If the 
receivables (other than those with adjustable or variable rates) had 
already been originated prior to the closing date, no action would be 
required as the fluctuations in the market interest rates would not 
affect the receivables transferred to the trust after the closing date. 
In contrast, if interest rates fall after the closing date, loans 
originated after the closing date will tend to be originated at lower 
rates, with the possible result that the receivables will not support 
the certificate pass-through rate. In such situations, the sponsor 
could sell the receivables into the trust at a discount, and more 
receivables would be used to fund the trust in order to support the 
pass-through rate. In a situation where interest rates drop 
dramatically and the sponsor is unable to provide sufficient 
receivables at the requisite interest rates, the pool of receivables 
would be closed. In this latter event, under the terms of the pooling 
and servicing agreement, the certificateholders would receive a

[[Page 42266]]

repayment of principal from the unused cash held in the pre-funding 
account. In transactions where the certificate pass-through rates are 
variable or adjustable, the effects of market interest rate 
fluctuations are mitigated. In no event will fluctuations in interest 
rates payable on the receivable affect the pass-through rate for fixed 
rate certificates.
    The cash deposited into the trust and allocated to the pre-funding 
account is invested in certain permitted investments (see below), which 
may be commingled with other accounts of the trust. The allocation of 
investment earnings to each trust account is made periodically as 
earned in proportion to each account's allocable share of the 
investment returns. As pre-funding account investment earnings are 
required to be used to support (to the extent authorized in the 
particular transaction) the pass-through amounts payable to the 
certificateholders with respect to a periodic distribution date, the 
trustee is necessarily required to make periodic, separate allocations 
of the trust's earning to each trust account, thus ensuring that all 
allocable commingled investment earnings are properly credited to the 
pre-funding account on a timely basis.
    The Capitalized Interest Account:
    8. In certain transactions where a pre-funding account is used, the 
sponsor and/or originator may also transfer to the trust additional 
cash on the closing date, which is deposited in a capitalized interest 
account and used during the pre-funding period to compensate the 
certificateholders for any shortfall between the investment earnings on 
the pre-funding account and the pass-through interest rate payable 
under the certificates.
    The capitalized interest account is needed in certain transactions 
since the certificates are supported by the receivables and the 
earnings on the pre-funding account, and it is unlikely that the 
investment earnings on the pre-funding account will equal the interest 
rates on the certificates (although such investment earnings will be 
available to pay interest on the certificates). The capitalized 
interest account funds are paid out periodically to the 
certificateholders as needed on distribution dates to support the pass-
through rate.
    In addition, a portion of such funds may be returned to the sponsor 
from time to time as the receivables are transferred into the trust and 
the need for the capitalized interest account diminishes. Any amounts 
held in the capitalized interest account generally will be returned to 
the sponsor and/or originator either at the end of the pre-funding 
period or periodically as receivables are transferred and the 
proportionate amount of funds in the capitalized interest account can 
be reduced. Generally, the capitalized interest account terminates no 
later than the end of the pre-funding period. However, there may be 
some cases where the capitalized interest account remains open until 
the first date distributions are made to certificateholders following 
the end of the pre-funding period.
    In other transactions, a capitalized interest account is not 
necessary because the interest paid on the receivables exceeds the 
interest payable on the certificates at the applicable pass-through 
rate and the fees of the trust. Such excess is sufficient to make up 
any shortfall resulting from the pre-funding account earning less than 
the certificate pass-through rate. In certain of these transactions, 
this occurs because the aggregate principal amount of receivables 
exceeds the aggregate principal amount of certificates.
    Pre-Funding Account and Capitalized Interest Account Payments and 
Investments:
    9. Pending the acquisition of additional receivables during the 
pre-funding period, it is expected that amounts in the pre-funding 
account and the capitalized interest account will be invested in 
certain permitted investments or will be held uninvested. Pursuant to 
the pooling and servicing agreement, all permitted investments must 
mature prior to the date the actual funds are needed. The permitted 
types of investments in the pre-funding account and capitalized 
interest account are investments which are either: (i) 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 (ii) have been rated 
(or the obligor has been rated) in one of the three highest generic 
rating categories by a rating agency, as set forth in the pooling and 
servicing agreement and as required by the rating agencies. The credit 
grade quality of the permitted investments is generally no lower than 
that of the certificates. The types of permitted investments will be 
described in the pooling and servicing agreement.
    The ordering of interest payments to be made from the pre-funding 
and capitalized interest accounts is pre-established and set forth in 
the pooling and servicing agreement. The only principal payments which 
will be made from the pre-funding account are those made to acquire the 
receivables during the pre-funding period and those distributed to the 
certificateholders in the event that the entire amount in the pre-
funding account is not used to acquire receivables. The only principal 
payments which will be made from the capitalized interest account are 
those made to certificateholders if necessary to support the 
certificate pass-through rate or those made to the sponsor either 
periodically as they are no longer needed or at the end of the pre-
funding period when the capitalized interest account is no longer 
necessary.
    The Characteristics of the Receivables Transferred During the Pre-
Funding Period:
    10. In order to ensure that there is sufficient specificity as to 
the representations and warranties of the sponsor regarding the 
characteristics of the receivables to be transferred after the closing 
date:
    (i) All such receivables will meet the same terms and conditions 
for eligibility as those of the original receivables used to create the 
trust corpus (as described in the prospectus or private placement 
memorandum and/or pooling and servicing agreement for such 
certificates), which terms and conditions have been approved by a 
rating agency. However, the terms and conditions for determining the 
eligibility of a receivable may be changed if such changes receive 
prior approval either by a majority vote of the outstanding 
certificateholders or by a rating agency;
    (ii) The transfer to the trust of the receivables acquired during 
the pre-funding period will not result in the certificates receiving a 
lower credit rating from the rating agency upon termination of the pre-
funding period than the rating that was obtained at the time of the 
initial issuance of the certificates by the trust;
    (iii) The weighted average annual percentage interest rate (the 
average interest rate) for all of the obligations in the trust 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 trust on the closing date;
    (iv) The trustee of the trust (or any agency 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, will enforce all the rights created in favor 
of certificateholders of such

[[Page 42267]]

trust, including employee benefit plans subject to the Act.
    In order to ensure that the characteristics of the receivables 
actually acquired during the pre-funding period are substantially 
similar to receivables that were acquired as of the closing date, the 
characteristics of the additional obligations subsequently acquired 
will be either: (i) Monitored by a credit support provider or other 
insurance provider which is independent of the sponsor; or (ii) an 
independent accountant retained by the sponsor will provide the sponsor 
with a letter (with copies provided to the rating agency, FTNC and the 
trustee) stating whether or not the characteristics of the additional 
obligations acquired after the closing date 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.
    Each prospectus, private placement memorandum and/or pooling and 
servicing agreement will set forth the terms and conditions for 
eligibility of the receivables to be included in the trust as of the 
related closing date, as well as those to be acquired during the pre-
funding period, which terms and conditions will have been agreed to by 
the rating agencies which are rating the applicable certificates as of 
the closing date. Also included among these conditions is the 
requirement that the trustee be given prior notice of the receivables 
to be transferred, along with such information concerning those 
receivables as may be requested. Each prospectus or private placement 
memorandum will describe the amount to be deposited in, and the 
mechanics of, the pre-funding account and will describe the pre-funding 
period for the trust.
Parties to Transactions
    11. The originator of a receivable is the entity that initially 
lends money to a borrower (obligor), such as a home owner or automobile 
purchaser, or leases property to a lessee. The originator may either 
retain a receivable in its portfolio or sell it to a purchaser, such as 
a trust sponsor.
    Originators of receivables included in the trusts will be entities 
that originate receivables in the ordinary course of their businesses, 
including finance companies for whom such origination constitutes the 
bulk of their operations, financial institutions for whom such 
origination constitutes a substantial part of their operations, and any 
kind of manufacturer, merchant, or service enterprise for whom such 
origination is an incidental part of its operations. Each trust may 
contain assets of one or more originators. The originator of the 
receivables may also function as the trust sponsor or servicer. The 
originator may be an affiliate of FTNC.
    12. The sponsor will be one of three entities: (i) A special-
purpose or other corporation unaffiliated with the servicer, (ii) a 
special-purpose or other corporation affiliated with the servicer, or 
(iii) the servicer itself. Where the sponsor is not also the servicer, 
the sponsor's role will generally be limited to acquiring the 
receivables to be included in the trust, establishing the trust, 
designating the trustee, and assigning the receivables to the trust.
    13. The trustee of a trust is the legal owner of the obligations in 
the trust. The trustee is also a party to or beneficiary of all the 
documents and instruments deposited in the trust, and as such is 
responsible for enforcing all the rights created thereby in favor of 
certificateholders.
    The trustee will be an independent entity, and therefore will be 
unrelated to FTNC, the trust sponsor, the servicer or any other member 
of the Restricted Group (as defined in section III.L.). FTNC represents 
that the trustee will be a substantial financial institution or trust 
company experienced in trust activities. The trustee receives a fee for 
its services, which will be paid by the servicer or sponsor or out of 
the trust assets. The method of compensating the trustee which is 
specified in the pooling and servicing agreement will be disclosed in 
the prospectus or private placement memorandum relating to the offering 
of the certificates.
    14. The servicer of a trust administers the receivables on behalf 
of the certificateholders. The servicer's functions typically involve, 
among other things, notifying borrowers of amounts due on receivables, 
maintaining records of payments received on receivables and instituting 
foreclosure or similar proceedings in the event of default. In cases 
where a pool of receivables has been purchased from a number of 
different originators and deposited in a trust, the receivables may be 
``subserviced'' by their respective originators and a single entity may 
``master service'' the pool of receivables on behalf of the owners of 
the related series of certificates. Where this arrangement is adopted, 
a receivable continues to be serviced from the perspective of the 
borrower by the local subservicer, while the investor's perspective is 
that the entire pool of receivables is serviced by a single, central 
master servicer who collects payments from the local subservicers and 
passes them through to certificateholders.
    Receivables of the type suitable for inclusion in a trust 
invariably are serviced with the assistance of a computer. After the 
sale, the servicer keeps the sold receivables on the computer system in 
order to continue monitoring the accounts. Although the records 
relating to sold receivables are kept in the same master file as 
receivables retained by the originator, the sold receivables are 
flagged as having been sold. To protect the investor's interest, the 
servicer ordinarily covenants that this ``sold flag'' will be included 
in all records relating to the sold receivables, including the master 
file, archives, tape extracts and printouts.
    The sold flags are invisible to the obligor and do not affect the 
manner in which the servicer performs the billing, posting and 
collection procedures related to the sold receivables. However, the 
servicer uses the sold flag to identify the receivables for the purpose 
of reporting all activity on those receivables after their sale to 
investors.
    Depending on the type of receivable and the details of the 
servicer's computer system, in some cases the servicer's internal 
reports can be adapted for investor reporting with little or no 
modification. In other cases, the servicer may have to perform special 
calculations to fulfill the investor reporting responsibilities. These 
calculations can be performed on the servicer's main computer, or on a 
small computer with data supplied by the main system. In all cases, the 
numbers produced for the investors are reconciled to the servicer's 
books and reviewed by public accountants.
    The underwriter (i.e., FTNC, its affiliate, or a member of an 
underwriting syndicate or selling group of which FTNC or its affiliate 
is a manager or co-manager) will be a registered broker-dealer that 
acts as underwriter or placement agent with respect to the sale of the 
certificates. Public offerings of certificates are generally made on a 
firm commitment basis. Private placement of certificates may be made on 
a firm commitment or agency basis. It is anticipated that the lead and 
co-managing underwriters will make a market in certificates offered to 
the public.
    In some cases, the originator and servicer of receivables to be 
included in a trust and the sponsor of the trust (although they may 
themselves be related) will be unrelated to FTNC. In

[[Page 42268]]

other cases, however, affiliates of FTNC may originate or service 
receivables included in a trust or may sponsor a trust.
Certificate Price, Pass-Through Rate and Fees
    15. In some cases, the sponsor will obtain the receivables from 
various originators pursuant to existing contracts with such 
originators under which the sponsor continually buys receivables. In 
other cases, the sponsor will purchase the receivables at fair market 
value from the originator or a third party pursuant to a purchase and 
sale agreement related to the specific offering of certificates. In 
other cases, the sponsor will originate the receivables itself.
    As compensation for the receivables transferred to the trust, the 
sponsor receives certificates representing the entire beneficial 
interest in the trust, or the cash proceeds of the sale of such 
certificates. If the sponsor receives certificates from the trust, the 
sponsor sells all or a portion of these certificates for cash to 
investors or securities underwriters.
    16. The price of the certificates, both in the initial offering and 
in the secondary market, is affected by market forces, including 
investor demand, the pass-through interest rate on the certificates in 
relation to the rate payable on investments of similar types and 
quality, expectations as to the effect on yield resulting from 
prepayment of underlying receivables, and expectations as to the 
likelihood of timely payment.
    The pass-through rate for certificates is equal to the interest 
rate on receivables included in the trust minus a specified servicing 
fee.\25\ This rate is generally determined by the same market forces 
that determine the price of a certificate. The price of a certificate 
and its pass-through, or coupon, rate together determine the yield to 
investors. If an investor purchases a certificate at less than par, 
that discount augments the stated pass-through rate; conversely, a 
certificate purchased at a premium yields less than the stated coupon.
---------------------------------------------------------------------------

    \ 25\ The pass-through rate on certificates representing 
interests in trusts holding leases is determined by breaking down 
lease payments into ``principal'' and ``interest'' components based 
on an implicit interest rate.
---------------------------------------------------------------------------

    17. As compensation for performing its servicing duties, the 
servicer (who may also be the sponsor or an affiliate thereof, and 
receive fees for acting in that capacity) will retain the difference 
between payments received on the receivables in the trust and payments 
payable (at the pass-through rate) to certificateholders, except that 
in some cases a portion of the payments on receivables may be paid to a 
third party, such as a fee paid to a provider of credit support. The 
servicer may receive additional compensation by having the use of the 
amounts paid on the receivables between the time they are received by 
the servicer and the time they are due to the trust (which time is set 
forth in the pooling and servicing agreement). The servicer typically 
will be required to pay the administrative expenses of servicing the 
trust, including in some cases the trustee's fee, out of its servicing 
compensation.
    The servicer is also compensated to the extent it may provide 
credit enhancement to the trust or otherwise arrange to obtain credit 
support from another party. This ``credit support fee'' may be 
aggregated with other servicing fees, and is either paid out of the 
interest income received on the receivables in excess of the pass-
through rate or paid in a lump sum at the time the trust is 
established.
    18. The servicer may be entitled to retain certain administrative 
fees paid by a third party, usually the obligor. These administrative 
fees fall into three categories: (a) Prepayment fees; (b) late payment 
and payment extension fees; and (c) expenses, fees and charges 
associated with foreclosure or repossession, or other conversion of a 
secured position into cash proceeds, upon default of an obligation.
    Compensation payable to the servicer will be set forth or referred 
to in the pooling and servicing agreement and described in reasonable 
detail in the prospectus or private placement memorandum relating to 
the certificates.
    19. Payments on receivables may be made by obligors to the servicer 
at various times during the period preceding any date on which pass-
through payments to the trust are due. In some cases, the pooling and 
servicing agreement may permit the servicer to place these payments in 
non-interest bearing accounts maintained with itself or to commingle 
such payments with its own funds prior to the distribution dates. In 
these cases, the servicer would be entitled to the benefit derived from 
the use of the funds between the date of payment on a receivable and 
the pass-through date. Commingled payments may not be protected from 
the creditors of the servicer in the event of the servicer's bankruptcy 
or receivership. In those instances when payments on receivables are 
held in non-interest bearing accounts or are commingled with the 
servicer's own funds, the servicer is required to deposit these 
payments by a date specified in the pooling and servicing agreement 
into an account from which the trustee makes payments to 
certificateholders.
    20. The underwriter will receive a fee in connection with the 
securities underwriting or private placement of certificates. In a firm 
commitment underwriting, this fee would consist of the difference 
between what the underwriter receives for the certificates that it 
distributes and what it pays the sponsor for those certificates. In a 
private placement, the fee normally takes the form of an agency 
commission paid by the sponsor. In a best efforts underwriting in which 
the underwriter would sell certificates in a public offering on an 
agency basis, the underwriter would receive an agency commission rather 
than a fee based on the difference between the price at which the 
certificates are sold to the public and what it pays the sponsor. In 
some private placements, the underwriter may buy certificates as 
principal, in which case its compensation would be the difference 
between what it receives for the certificates that it sells and what it 
pays the sponsor for these certificates.
Purchase of Receivables by the Servicer
    21. The applicant represents that as the principal amount of the 
receivables in a trust is reduced by payments, the cost of 
administering the trust generally increases, making the servicing of 
the trust prohibitively expensive at some point. Consequently, the 
pooling and servicing agreement generally provides that the servicer 
may purchase the receivables remaining in the trust when the aggregate 
unpaid balance payable on the receivables is reduced to a specified 
percentage (usually 5 to 10 percent) of the initial aggregate unpaid 
balance.
    The purchase price of a receivable is specified in the pooling and 
servicing agreement and will be at least equal to: (1) the unpaid 
principal balance on the receivable plus accrued interest, less any 
unreimbursed advances of principal made by the servicer; or (2) the 
greater of (a) the amount in (1) or (b) the fair market value of such 
obligations in the case of a REMIC, or the fair market value of the 
receivables in the case of a trust that is not a REMIC.
Certificate Ratings
    22. The certificates will have received one of the three highest 
ratings available from a rating agency. Insurance or other credit 
support (such as surety bonds, letters of credit, guarantees, or 
overcollateralization) will be obtained by the trust sponsor to the 
extent necessary for the certificates to attain

[[Page 42269]]

the desired rating. The amount of this credit support is set by the 
rating agencies at a level that is a multiple of the worst historical 
net credit loss experience for the type of obligations included in the 
issuing trust.
Provision of Credit Support
    23. In some cases, the master servicer, or an affiliate of the 
master servicer, may provide credit support to the trust (i.e. act as 
an insurer). In these cases, the master servicer, in its capacity as 
servicer, will first advance funds to the full extent that it 
determines that such advances will be recoverable (a) out of late 
payments by the obligors, (b) from the credit support provider (which 
may be the master servicer or an affiliate thereof) or, (c) in the case 
of a trust that issues subordinated certificates, from amounts 
otherwise distributable to holders of subordinated certificates, and 
the master servicer will advance such funds in a timely manner. When 
the servicer is the provider of the credit support and provides its own 
funds to cover defaulted payments, it will do so either on the 
initiative of the trustee, or on its own initiative on behalf of the 
trustee, but in either event it will provide such funds to cover 
payments to the full extent of its obligations under the credit support 
mechanism. In some cases, however, the master servicer may not be 
obligated to advance funds but instead would be called upon to provide 
funds to cover defaulted payments to the full extent of its obligations 
as insurer. Moreover, a master servicer typically can recover advances 
either from the provider of credit support or from future payments on 
the affected assets.
    If the master servicer fails to advance funds, fails to call upon 
the credit support mechanism to provide funds to cover delinquent 
payments, or otherwise fails in its duties, the trustee would be 
required and would be able to enforce the certificateholders' rights, 
as both a party to the pooling and servicing agreement and the owner of 
the trust estate, including rights under the credit support mechanism. 
Therefore, the trustee, who is independent of the servicer, will have 
the ultimate right to enforce the credit support arrangement.
    When a master servicer advances funds, the amount so advanced is 
recoverable by the master servicer out of future payments on 
receivables held by the trust to the extent not covered by credit 
support. However, where the master servicer provides credit support to 
the trust, there are protections in place to guard against a delay in 
calling upon the credit support to take advantage of the fact that the 
credit support declines proportionally with the decrease in the 
principal amount of the obligations in the trust as payments on 
receivables are passed through to investors. These safeguards include:
    (a) There is often a disincentive to postponing credit losses 
because the sooner repossession or foreclosure activities are 
commenced, the more value that can be realized on the security for the 
obligation;
    (b) The master servicer has servicing guidelines which include a 
general policy as to the allowable delinquency period after which an 
obligation ordinarily will be deemed uncollectible. The pooling and 
servicing agreement will require the master servicer to follow its 
normal servicing guidelines and will set forth the master servicer's 
general policy as to the period of time after which delinquent 
obligations ordinarily will be considered uncollectible;
    (c) As frequently as payments are due on the receivables included 
in the trust (monthly, quarterly or semi-annually, as set forth in the 
pooling and servicing agreement), the master servicer is required to 
report to the independent trustee the amount of all past-due payments 
and the amount of all servicer advances, along with other current 
information as to collections on the receivables and draws upon the 
credit support. Further, the master servicer is required to deliver to 
the trustee annually a certificate of an executive officer of the 
master servicer stating that a review of the servicing activities has 
been made under such officer's supervision, and either stating that the 
master servicer has fulfilled all of its obligations under the pooling 
and servicing agreement or, if the master servicer has defaulted under 
any of its obligations, specifying any such default. The master 
servicer's reports are reviewed at least annually by independent 
accountants to ensure that the master servicer is following its normal 
servicing standards and that the master servicer's reports conform to 
the master servicer's internal accounting records. The results of the 
independent accountants' review are delivered to the trustee; and
    (d) The credit support has a ``floor'' dollar amount that protects 
investors against the possibility that a large number of credit losses 
might occur towards the end of the life of the trust, whether due to 
servicer advances or any other cause. Once the floor amount has been 
reached, the servicer lacks an incentive to postpone the recognition of 
credit losses because the credit support amount thereafter is subject 
to reduction only for actual draws. From the time that the floor amount 
is effective until the end of the life of the trust, there are no 
proportionate reductions in the credit support amount caused by 
reductions in the pool principal balance. Indeed, since the floor is a 
fixed dollar amount, the amount of credit support ordinarily increases 
as a percentage of the pool principal balance during the period that 
the floor is in effect.
Disclosure
    24. In connection with the original issuance of certificates, the 
prospectus or private placement memorandum will be furnished to 
investing plans. The prospectus or private placement memorandum will 
contain information material to a fiduciary's decision to invest in the 
certificates, including:
    (a) Information concerning the payment terms of the certificates, 
the rating of the certificates, and any material risk factors with 
respect to the certificates;
    (b) A description of the trust as a legal entity and a description 
of how the trust was formed by the seller/servicer or other sponsor of 
the transaction;
    (c) Identification of the independent trustee for the trust;
    (d) A description of the receivables contained in the trust, 
including the types of receivables, the diversification of the 
receivables, their principal terms, and their material legal aspects;
    (e) A description of the sponsor and servicer;
    (f) A description of the pooling and servicing agreement, including 
a description of the seller's principal representations and warranties 
as to the trust assets, including the terms and conditions for 
eligibility of any receivables transferred during the pre-funding 
period and the trustee's remedy for any breach thereof; a description 
of the procedures for collection of payments on receivables and for 
making distributions to investors, and a description of the accounts 
into which such payments are deposited and from which such 
distributions are made; a description of permitted investments for any 
pre-funding account or capitalized interest account; identification of 
the servicing compensation and any fees for credit enhancement that are 
deducted from payments on receivables before distributions are made to 
investors; a description of periodic statements provided to the 
trustee, and provided to or made available to investors by the trustee; 
and a description of the events that constitute events of default under 
the pooling and servicing contract and a description of the trustee's 
and the investors' remedies incident thereto;

[[Page 42270]]

    (g) A description of the credit support;
    (h) A general discussion of the principal federal income tax 
consequences of the purchase, ownership and disposition of the pass-
through securities by a typical investor;
    (i) A description of the underwriters' plan for distributing the 
pass-through securities to investors;
    (j) Information about the scope and nature of the secondary market, 
if any, for the certificates; and
    (k) A statement as to the duration of any pre-funding period and 
the pre-funding limit for the trust.
    25. Reports indicating the amount of payments of principal and 
interest are provided to certificateholders at least as frequently as 
distributions are made to certificateholders. Certificateholders will 
also be provided with periodic information statements setting forth 
material information concerning the underlying assets, including, where 
applicable, information as to the amount and number of delinquent and 
defaulted loans or receivables.
    26. In the case of a trust that offers and sells certificates in a 
registered public offering, the trustee, the servicer or the sponsor 
will file such periodic reports as may be required to be filed under 
the Securities Exchange Act of 1934. Although some trusts that offer 
certificates in a public offering will file quarterly reports on Form 
10-Q and Annual Reports on Form 10-K, many trusts obtain, by 
application to the SEC, a complete exemption from the requirement to 
file quarterly reports on Form 10-Q and a modification of the 
disclosure requirements for annual reports on Form 10-K. If such an 
exemption is obtained, these trusts normally would continue to have the 
obligation to file current reports on Form 8-K to report material 
developments concerning the trust and the certificates and copies of 
the statements sent to certificateholders. While the SEC's 
interpretation of the periodic reporting requirements is subject to 
change, periodic reports concerning a trust will be filed to the extent 
required under the Securities Exchange Act of 1934.
    27. At or about the time distributions are made to 
certificateholders, a report will be delivered to the trustee as to the 
status of the trust and its assets, including underlying obligations. 
Such report will typically contain information regarding the trust's 
assets (including those purchased by the trust from any pre-funding 
account), payments received or collected by the servicer, the amount of 
prepayments, delinquencies, servicer advances, defaults and 
foreclosures, the amount of any payments made pursuant to any credit 
support, and the amount of compensation payable to the servicer. Such 
report also will be delivered to or made available to the rating agency 
or agencies that have rated the trust's certificates.
    In addition, promptly after each distribution date, 
certificateholders will receive a statement prepared by the servicer or 
trustee summarizing information regarding the trust and its assets. 
Such statement will include information regarding the trust and its 
assets, including underlying receivables. Such statement will typically 
contain information regarding payments and prepayments, delinquencies, 
the remaining amount of the guaranty or other credit support and a 
breakdown of payments between principal and interest.
Forward Delivery Commitments
    28. FTNC may contemplate entering into forward delivery commitments 
in connection with the offering of pass-through certificates. The 
utility of forward delivery commitments has been recognized with 
respect to offering similar certificates backed by pools of residential 
mortgages, and FTNC may find it desirable in the future to enter into 
such commitments for the purchase of certificates.
Secondary Market Transactions
    29. FTNC may attempt to make a market for securities for which it 
is lead or co-managing underwriter, although it is under no obligation 
to do so. At times, FTNC will facilitate sales by investors who 
purchase certificates if FTNC has acted as agent or principal in the 
original private placement of the certificates and if such investors 
request FTNC's assistance.
Summary
    30. In summary, the applicant represents that the transactions for 
which exemptive relief is requested satisfy the statutory criteria of 
section 408(a) of the Act due to the following:
    (a) The trusts contain ``fixed pools'' of assets. There is little 
discretion on the part of the trust sponsor to substitute receivables 
contained in the trust once the trust has been formed;
    (b) In the case where a pre-funding account is used, the 
characteristics of the receivables to be transferred to the trust 
during the pre-funding period will be substantially similar to the 
characteristics of those transferred to the trust on the closing date, 
thereby giving the sponsor and/or originator little discretion over the 
selection process, and compliance with this requirement will be assured 
by the specificity of the characteristics and the monitoring mechanisms 
contemplated under the proposed exemption. In addition, certain cash 
accounts will be established to support the certificate pass-through 
rate and such cash accounts will be invested in short-term, 
conservative investments; the pre-funding period will be of a 
reasonably short duration; a pre-funding limit will be imposed; and any 
Internal Revenue Service requirements with respect to pre-funding 
intended to preserve the passive income character of the trust will be 
met. The fiduciary of the plans making the decision to invest in 
certificates is thus fully apprised of the nature of the receivables 
which will be held in the trust and has sufficient information to make 
a prudent investment decision.
    (c) Certificates in which plans invest will have been rated in one 
of the three highest rating categories by a rating agency. Credit 
support will be obtained to the extent necessary to attain the desired 
rating;
    (d) All transactions for which FTNC seeks exemptive relief will be 
governed by the pooling and servicing agreement, which is made 
available to plan fiduciaries for their review prior to the plan's 
investment in certificates;
    (e) Exemptive relief from sections 406(b) and 407 for sales to 
plans is substantially limited; and
    (f) FTNC anticipates that it will make a secondary market in 
certificates (although it is under no obligation to do so).

Notice to Interested Persons

    The applicant represents that because those potentially interested 
participants and beneficiaries cannot all be identified, the only 
practical means of notifying such participants and beneficiaries of 
this proposed exemption is by the publication of this notice in the 
Federal Register. Comments and requests for a hearing must be received 
by the Department not later than 30 days from the date of publication 
of this notice of proposed exemption in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Mr. J. Martin Jara 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

[[Page 42271]]

disqualified person from certain other provisions of the Act and/or the 
Code, including any prohibited transaction provisions to which the 
exemption does not apply and the general fiduciary responsibility 
provisions of section 404 of the Act, which, among other things, 
require a fiduciary to discharge his duties respecting the plan solely 
in the interest of the participants and beneficiaries of the plan and 
in a prudent fashion in accordance with section 404(a)(1)(b) of the 
Act; nor does it affect the requirement of section 401(a) of the Code 
that the plan must operate for the exclusive benefit of the employees 
of the employer maintaining the plan and their beneficiaries;
    (2) 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 30th day of June, 2000.
Ivan Strasfeld,
Director of Exemption Determinations, Pension and Welfare Benefits 
Administration, Department of Labor.
[FR Doc. 00-17065 Filed 7-6-00; 8:45 am]
BILLING CODE 4510-29-P