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Employee Benefits Security Administration

EBSA Federal Register Notice

Grant of Individual Exemptions; Bank of America, N.A. [02/17/2004]

[PDF Version]

Volume 69, Number 31, Page 7506-7510

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DEPARTMENT OF LABOR

Employee Benefits Security Administration

[Prohibited Transaction Exemption 2004-02 et al.; Exemption Application 
No. D-11047 et al.]

 
Grant of Individual Exemptions; Bank of America, N.A.

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Grant of individual exemptions.

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SUMMARY: This document contains exemptions issued by the Department of 
Labor (the Department) from certain of the prohibited transaction 
restrictions of the Employee Retirement Income Security Act of 1974 
(the Act) and/or the Internal Revenue Code of 1986 (the Code).
    A notice was published in the Federal Register of the pendency 
before the Department of a proposal to grant such exemption. The notice 
set forth a summary of facts and representations contained in the 
application for exemption and referred interested persons to the 
application for a complete statement of the facts and representations. 
The application has been available for public inspection at the 
Department in Washington, DC. The notice also invited interested 
persons to submit comments on the requested exemption to the 
Department. In addition the notice stated that any interested person 
might submit a written request that a public hearing be held (where 
appropriate). The applicant has represented that it has complied with 
the requirements of the notification to interested persons. No requests 
for a hearing were received by the Department. Public comments were 
received by the Department as described in the granted exemption.
    The notice of proposed exemption was issued and the exemption is 
being granted solely by the Department because, effective December 31, 
1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 
(1996), transferred the authority of the Secretary of the Treasury to 
issue exemptions of the type proposed to the Secretary of Labor.

Statutory Findings

    In accordance with section 408(a) of the Act and/or section 
4975(c)(2) of the Code and the procedures set forth in 29 CFR Part 
2570, Subpart B (55 FR 32836, 32847, August 10, 1990) and based upon 
the entire record, the Department makes the following findings:
    (a) The exemption is administratively feasible;
    (b) The exemption is in the interests of the plan and its 
participants and beneficiaries; and
    (c) The exemption is protective of the rights of the participants 
and beneficiaries of the plan.

Bank of America, N.A., Located in Charlotte, North Carolina

[Prohibited Transaction Exemption 2004-02; Exemption Application No. D-
11147]

Exemption

Section I--Covered Transactions

    The restrictions of section 406(a) of the Act and the sanctions 
resulting from the application of section 4975 of the Code, by reasons 
of section 4975(c)(1)(A) through (D) of the Code, shall not apply, as 
of January 1, 2003, to:
    (A) The granting to Bank of America, N.A. (Bank), either as an 
agent (the Agent) for a group of financial institutions (Lender(s)), or 
as a sole Lender, that will fund a so-called ``credit facility'' 
(Credit Facility) providing credit to certain investment funds 
(Fund(s)), by the Fund of a security interest in and lien on the 
capital commitments (Capital Commitments), reserve amounts, and capital 
contributions (Capital Contributions) of certain investors, including 
employee benefit plans (a Covered Plan, as defined in Section III(A)), 
investing in the Fund;
    (B) Any collateral assignment and pledge by the Fund to the Agent, 
or to the Bank as sole Lender, of its security interest in each 
Investor's equity interest, including a Covered Plan's equity interest, 
in the Fund;
    (C) The granting by the Fund to the Agent, or to the Bank as sole 
Lender, of

[[Page 7507]]

a security interest in a Collateral Account to which all Capital 
Contributions in the Fund will be deposited when paid (except in 
certain limited circumstances);\1\
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    \1\ In most cases, all Investors will make Capital Contributions 
into the Collateral Account. However, in some cases, investors that 
are not plans may be directed to make Capital Contributions to the 
Agent, for the benefit of the Lenders, after an event of default, in 
some other manner.
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    (D) The granting by the Fund to the Agent, or to the Bank as sole 
Lender, of its right to make calls on Investors for Capital 
Contributions (Capital Call), which shall be in cash, under the 
operative Fund Agreements (as defined in Section III(C)), enforce the 
Capital Calls, collect the Capital Contributions, and apply them to any 
amount due under the Credit Facility;
    (E) The execution by a Covered Plan of an agreement (Investor 
Consent) consenting to the Fund's assignment to the Agent, or to the 
Bank as sole Lender, of the Fund's right to make Capital Calls, which 
may contain: (i) An acknowledgment by the Covered Plan of the Fund's 
assignment to the Agent, or to the Bank as sole Lender, of the right to 
make Capital Calls upon the Covered Plan, enforce the Capital Calls, 
collect the Capital Contributions, and apply them to any amount due 
under the Credit Facility; (ii) a consent (as either part of the Fund 
Agreements or as a separate agreement) by the Covered Plan to make 
Capital Contributions to the Fund without counterclaim, setoff, or 
defense, for the purpose of repayment of the Credit Facility; (iii) a 
representation that the Covered Plan has no knowledge of claims, 
offsets or defenses that would adversely affect its obligation to fund 
Capital Contributions under the Fund Agreements; and (iv) an agreement 
that the Covered Plan will fund Capital Contributions only into the 
Collateral Account; provided that with respect to all transactions 
described above, the conditions set forth below in Section II are met.

Section II--Conditions

    (A) The transaction is on terms that are no less favorable to the 
Covered Plans than those which the Covered Plans could obtain in arm's-
length transactions with unrelated parties;
    (B) The decision to invest in the Fund on behalf of each Covered 
Plan and to execute an Investor Consent in favor of the Bank (either as 
sole Lender or Agent), is made by fiduciaries of the Covered Plan that 
are not included among, are independent of, and are unaffiliated with, 
the Lenders (including the Bank) and the Fund. For purposes of this 
exemption, a fiduciary of a Covered Plan is not included among, is 
independent of, and unaffiliated with, a Lender (including the Bank) or 
a Fund, as applicable, if: (i) The fiduciary is not, directly or 
indirectly, through one or more intermediaries, controlling, controlled 
by, or under common control with such Lender or Fund,\2\ (ii) the 
fiduciary is not an officer, director, employee or relative of, or 
partner in, such Lender or Fund; and (iii) no officer, director, 
highly-compensated employee (within the meaning of section 
4975(e)(2)(H) of the Code), or partner of the Fund, or any officer, 
director or highly-compensated employee, or partner of the Lender who 
is involved in the transactions described in Section I of the 
exemption, is also an officer, director, highly-compensated employee, 
or partner of the fiduciary. However, if such individual is a director 
of the Lender, and if he or she abstains from participation in, and is 
not otherwise involved with, the decision made by the Covered Plan to 
invest in the Fund, then this condition shall be deemed satisfied;
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    \2\ For purposes of determining whether a fiduciary is not 
included among, is independent of, and unaffiliated with, a Fund, 
the term ``Fund'' shall be deemed, as appropriate, to include the 
governing entity of the Fund or a member of the governing body of 
the Fund, as appropriate, e.g., a general partner of a partnership, 
a manager of a limited liability company, a member of a member-
managed limited liability company, or a member of the board of 
directors of a corporation.
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    (C) At the time of the execution of an Investor Consent, the 
Covered Plan has assets of not less than $100 million. In the case of 
multiple plans maintained by the same employer, or by members of a 
controlled group of corporations (within the meaning of Code section 
414(b)) or members of a group of trades or businesses under common 
control (within the meaning of Code section 414(c)) (hereafter, 
referred to as ``members of a controlled group''), whose assets are 
invested on a commingled basis (e.g., through a master trust), this 
$100 million threshold applies to the aggregate assets of the 
commingled entity;
    (D) Not more than five (5) percent of the assets of any Covered 
Plan, measured at the time of the execution of an Investor Consent, is 
invested in the Fund. In the case of multiple plans maintained by the 
same employer, or by members of a controlled group, whose assets are 
invested on a commingled basis (e.g., through a master trust), the five 
(5) percent limit applies to the aggregate assets of the commingled 
entity;
    (E) Neither the Bank nor any Lender has discretionary authority or 
control with respect to a Covered Plan's investment in the Fund nor 
renders investment advice (within the meaning of 29 CRF 2510.3-21(c)) 
with respect to such investment;
    (F) Upon request, the Covered Plan fiduciaries receive from the 
Bank a copy of this exemption, as published in the Federal Register, as 
well as a copy of the notice of proposed exemption. In addition, all 
appropriate fiduciaries of Covered Plans must receive a copy of this 
exemption, as published in the Federal Register, for Covered 
Transactions (as defined in Section III(D) below) that occurred during 
the period from January 1, 2003 until the date of this exemption;
    (G) The Bank receives from the Covered Plan fiduciaries a written 
representation that the conditions set forth above in Section II(B), 
(C), and (D) are satisfied for such transaction with respect to the 
Covered Plan for which they are fiduciaries; and
    (H) None of the Covered Transactions are part of an arrangement, 
agreement or understanding, designed to benefit a party in interest 
with respect to a Covered Plan.

Section III--Definitions

    (A) The term ``Covered Plan'' means an investor in a Fund (as 
defined below) that is an employee benefit plan, as defined in section 
3(3) of the Act, that satisfies the conditions set forth herein in 
Section II;
    (B) The term ``Fund'' means an investment or venture capital fund 
(organized as a corporation, limited partnership, limited liability 
company, or another business entity authorized by applicable law) in 
which one or more investors invest, including employee benefit plans or 
special purpose entities holding ``plan assets'' subject to the Act, as 
described herein, by making capital contributions in cash to such Fund, 
pursuant to specific Capital Commitments as established by the Fund 
Agreement(s) and other operative documents executed by the parties, for 
purposes of making certain real estate investments (including real 
estate-related investments, such as venture capital investments) or 
non-real estate investments. The term ``Fund'' includes an entity 
created by the Fund that may borrow or receive funds from the Credit 
Facility, provided that such entity is considered an affiliate of the 
Fund as a subsidiary or other controlled entity;
    (C) The terms ``Fund Agreement'' or ``Fund Agreements'' mean the 
written agreements under which a Fund (as defined above) is formed 
(such as a limited partnership agreement, a limited liability company 
agreement or articles of incorporation, together with ancillary

[[Page 7508]]

related agreements, such as subscription agreements) that obligate each 
investor to make cash contributions of capital with respect to Capital 
Commitments, upon receipt of a call for Capital Contributions;
    (D) The terms ``Covered Transaction'' or ``Covered Transactions'' 
mean any combination of transactions described in Section I(A)-(D), in 
conjunction with the Investor Consent described in Section I(E); and
    (E) 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.

EFFECTIVE DATE: This exemption is effective as of January 1, 2003.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the notice of proposed exemption published on September 29, 2003, at 68 
FR 56008.
    Written Comments: The applicant (referred to herein as the 
``Bank'') submitted a number of comments on the notice of proposed 
exemption (the Notice). These comments, and modifications to the 
exemption made by the Department in response thereto, are discussed 
below.
    First, the Bank states that the term ``Borrower Collateral 
Account'' appeared several times in the operative language of the 
Notice (see 68 FR at 56008-56009, Section I(C) and I(E)) as well as in 
the Summary of Facts and Representations (the Summary) in the Notice. 
In particular, Paragraph 3 of the Summary states that the borrower 
under the Credit Facility will be a Fund. However, the Bank states that 
the account established for a borrower, referred to as a ``Borrower 
Collateral Account,'' may be in the name of the Fund if the Fund is the 
borrower, or it may be in the name of an affiliate of the Fund (i.e., a 
subsidiary or other controlled entity) that is established for the 
purpose of making a particular investment. Thus, in order to avoid any 
confusion, the Bank suggested that the exemption should refer to such 
accounts simply as the ``Collateral Account.''
    In response to the Bank's comment, the Department has deleted the 
term ``Borrower Collateral Account'' and substituted the term 
``Collateral Account'' in Sections I(C) and I(E), as well as in 
Footnote 1, of the exemption. In addition, the Department notes that 
any references to the term ``Borrower Collateral Account'' in the 
Summary (e.g., in the last paragraph of Paragraph 6, or in item (iv) of 
Paragraph 7) should be replaced with the term ``Collateral Account'' as 
clarified by the Bank.
    Second, the Bank states that there are at least two additional 
references in the Summary to a Fund as a borrower of funds (i.e., 
monies) under a Credit Facility (e.g., Paragraph 3 of the Summary (68 
FR at 56009, third column) and Paragraph 6 of the Summary (68 FR at 
56010, third column)). As noted above, the Bank represents that many of 
these Funds actually establish special purpose entities to make 
particular investments. In such instances, the Bank states that those 
entities are the borrower of such funds, in which case the Fund may be 
a guarantor or may be providing other credit support to the borrower 
entity. As a result, the Bank requested a clarification to note that 
such ``Funds'' may be borrowers under a Credit Facility as well as 
guarantors or providers of other credit support.
    The Department acknowledges the Bank's clarification. In addition, 
in response to the Bank's comments, the Department has added a sentence 
at the end of the definition of the term ``Fund'' in Section III(B) of 
the exemption which states that such term includes an entity created by 
a Fund that may borrow or receive funds from the Credit Facility, 
provided that such entity is considered an affiliate of the Fund as a 
subsidiary or other controlled entity.
    Third, with respect to the definition of a ``Fund,'' the Bank 
states that the Notice used the phrase ``investment opportunity fund'' 
to describe, in part, such investment vehicles (see 68 FR at 56009, 
second line of Section III(B) and Paragraph 1 of the Summary). The Bank 
represents that some persons may think that an ``investment opportunity 
fund'' is a specific type of ``Fund,'' rather than a more general 
investment fund that may be investing in real estate or other proper 
investments. As a result, the Bank requested that the word 
``opportunity'' be deleted from the phrase ``investment opportunity'' 
in the definition of the term ``Fund.''
    In response to the Bank's comment, the Department has deleted the 
word ``opportunity'' from the definition contained in Section III(B) of 
the exemption.
    Fourth, with respect to Paragraph 4 of the Summary (see 68 FR 
56010, second column), there is a discussion of the independence of 
Covered Plan fiduciaries from a Lender (including the Bank) or a Fund. 
In this regard, the last sentence in Paragraph 4 of the Summary (just 
prior to Paragraph 5) reads as follows:

    ``* * * (iii) the fiduciary is not a corporation or partnership 
in which a person affiliated with the Fund or a Lender, as 
appropriate, is an officer, director, partner, or employee.''

    The Bank states that the three items included in the discussion in 
Paragraph 4 of the Summary describe the circumstances for how 
fiduciaries are ``independent of, or unaffiliated with'' a Lender 
(including the Bank) or the Fund. The first item provides that the 
fiduciary must not, directly or indirectly, control, be controlled by, 
or be under common control with the Lender or a Fund. The second item 
ensures that a fiduciary (if an individual) is not an officer, 
director, employee, or relative of, or partner in, a Lender or a Fund. 
The third item is intended to cover fiduciaries that are not 
individuals, including a corporation or partnership. The Bank suggests 
that, in order to clarify that a Covered Plan's fiduciary that is an 
entity is not ``affiliated with'' a Lender (including the Bank) or a 
Fund, the exemption should state, for purposes of item (iii) above, 
that no officer or director of a fiduciary which is a corporation, 
partnership, or other entity controls the Fund or a Lender, as 
appropriate.
    The Department is unable to concur with the Bank's suggestion for 
clarifying the scope of affiliations between a Covered Plan's 
fiduciary, that is an entity, and a Lender or Fund by limiting the 
affiliations referred to in item (iii) to officers or directors of such 
entities who would control the Lender or Fund. Such a clarification 
would deem many individuals who have a significant interest or 
relationship to both the Lender or Fund and the Covered Plan's 
fiduciary as ``independent of, or unaffiliated with'' such entities.
    However, upon further discussion with the Bank in order to 
adequately address the concern raised by the comment, the Department 
has added the following sentence to the conditions contained in Section 
II(B) of the exemption:

    ``* * * For purposes of this exemption, a fiduciary of a Covered 
Plan is not included among, is independent of, and unaffiliated 
with, a Lender (including the Bank) or a Fund, as applicable, if: 
(i) the fiduciary is not, directly or indirectly, through one or 
more intermediaries, controlling, controlled by, or under common 
control with such Lender or Fund, (ii) the fiduciary is not an 
officer, director, employee or relative of, or partner in, such 
Lender or Fund; and (iii) no officer, director, highly-compensated 
employee (within the meaning of section 4975(e)(2)(H) of the Code), 
or partner of the Fund, or any officer, director or highly-
compensated employee, or partner of the Lender who is involved in 
the transactions

[[Page 7509]]

described in Section I of the exemption, is also an officer, 
director, highly-compensated employee, or partner of the fiduciary. 
However, if such individual is a director of the Lender, and if he 
or she abstains from participation in, and is not otherwise involved 
with, the decision made by the Covered Plan to invest in the Fund, 
then this condition shall be deemed satisfied.'' [emphasis added]

In addition, the Department has added a definition of the term 
``officer'' in Section III(E) of the exemption to more narrowly define 
the number of individuals who could be covered by such term.
    Finally, with respect to Section III(D) of the Notice, the Bank 
states that the word ``with'' should be inserted after the phrase ``in 
conjunction'' and before the phrase ``the Investor Consent.'' The 
Department acknowledges the Bank's comment and has inserted the word 
``with'' as indicated in Section III(D) of the exemption.
    The Bank provided other minor clarifications relating to the 
information contained in the Summary, which do not require further 
changes or modifications to the operative language, conditions or 
definitions of the exemption. Interested persons are directed to the 
Bank's letter of November 19, 2003, contained in the exemption 
application file D-11147, which is available for public 
inspection in the Public Disclosure Room of the Employee Benefits 
Security Administration, U.S. Department of Labor, Room N-1513, 200 
Constitution Avenue, NW., Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: Janet L. Schmidt of the Department, at 
telephone (202) 693-8540. (This is not a toll-free number.)

Lodgian, Inc. 401(k) Plan and Trust Agreement (the Plan), Located in 
Atlanta, Georgia

[Prohibited Transaction Exemption No. 2004-03; Application No. D-11180]

Exemption

    The restrictions of sections 406(a), 406(b)(1) and (b)(2) and 
407(a) of the Act and the sanctions resulting from the application of 
section 4975 of the Code, by reason of section 4975(c)(1)(A) through 
(E) of the Code, shall not apply, effective December 3, 2002, to (1) 
the past acquisition and holding by the Plan of certain warrants (the 
Warrant(s)) issued by Lodgian, Inc. (Lodgian), a party in interest with 
respect to the Plan, which would permit the purchase of new common 
stock (New Lodgian Stock); (2) the cancellation payment (the 
Cancellation Payment) by Lodgian to the Plan in exchange for the 
Warrants (i) at the election of active participants (ii) at the 
election of the terminated vested participants whose vested interests 
exceed $5,000, or (iii) in accordance with the procedures for the 
automatic cash out of the value of Warrants held in the accounts of 
terminated vested participants whose vested interests are $5,000 or 
less, for an amount that represents the highest value of the Warrants 
determined by an independent, qualified, appraiser between December 31, 
2002 and the date of the individual election; (3) the sale of the 
Warrants from Plan participants to Lodgian to cash out active and 
terminated vested participants; and (4) the potential exercise of the 
Warrants into the New Lodgian Stock. This exemption is conditioned upon 
the adherence to the material facts and representations described 
herein and upon the satisfaction of the following requirements:
    (a) The acquisition and holding of the Warrants by the Plan 
occurred in connection with Lodgian's bankruptcy proceeding (the 
Bankruptcy);
    (b) The Plan had no ability to affect the Plan of Reorganization 
filed by Lodgian on December 20, 2001 under Chapter 11 of Title 11 of 
the United States Code (the Bankruptcy Code), or the First Amended Plan 
of Reorganization, subsequently filed under the Bankruptcy Code by 
Lodgian on November 1, 2002 (The First Amended Plan of Reorganization);
    (c) The Warrants were acquired automatically and without any action 
on the part of the Plan;
    (d) The Warrants were acquired by the Plan with the same terms and 
conditions as non-Plan shareholders;
    (e) The Plan did not pay any fees or commissions in connection with 
the acquisition of the Warrants;
    (f) Any decision to cancel the Warrants and accept a Cancellation 
Payment from Lodgian will be made by the participant in the case of 
active participants and terminated vested participants whose vested 
interests exceed $5,000;
    (g) The Warrants have been and will continue to be valued annually 
on the 31st of December by an independent, qualified, appraiser;
    (h) With Respect to those Plan participants who cash out the 
Warrants, the value of the Warrants will be determined by using the 
highest value determined by an independent, qualified, appraiser 
between December 31, 2002 and the most recent valuation date prior to 
the date of the distribution;
    (i) An independent fiduciary will monitor the Cancellation 
Payments, and confirm the valuation of the Warrants;
    (j) Lodgian is required to purchase the Warrants upon request by a 
Plan participant provided that on the day of the request the price of 
the New Lodgian Stock is less than the exercise price of the Warrants; 
and
    (k) If the Warrant is listed on an established trading market 
Lodgian is not required to purchase the Warrant from the Plan.

EFFECTIVE DATE: This exemption is effective as of December 3, 2002.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the Notice of Proposed Exemption published on September 29, 2003 at 68 
FR 56013.

FOR FURTHER INFORMATION CONTACT: Khalif Ford of the Department, 
telephone (202) 693-8540 (this is not a toll-free number).

Bangs, McCullen, Butler, Foye & Simmons, L.L.P. Employees Profit 
Sharing Plan (the Plan) Located in Rapid City, South Dakota

[Prohibited Transaction Exemption 2004-04; Exemption Application No. D-
11198]

Exemption

    The restrictions of sections 406(a), 406(b)(1) and (b)(2) of the 
Act and the sanctions resulting from the application of section 4975 of 
the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, 
shall not apply, effective January 1, 2004, to the proposed lease by 
the Plan (the New Lease) of certain improved real property (the 
Property) located in Rapid City, South Dakota, to Bangs, McCullen, 
Butler, Foye & Simmons, L.L.P. (the Employer), the sponsor of the Plan, 
and a party in interest with respect to the Plan; provided that the 
following conditions are satisfied:
    (A) All terms and conditions of the New Lease are at least as 
favorable to the Plan as those which the Plan could obtain in an arm's-
length transaction with an unrelated party;
    (B) The New Lease is a triple net lease under which the Employer is 
obligated to pay for all costs of maintenance, repair, and taxes 
related to the Property;
    (C) The interests of the Plan for all purposes under the New Lease 
are represented by an independent fiduciary, Wells Fargo Bank, N.A., 
Rapid City, South Dakota;
    (D) The rent paid by the Employer under the New Lease is no less 
than the fair market rental value of the Property; and

[[Page 7510]]

    (E) If the summary appraisal of the Property, due in mid-December 
2003, contains a fair market rental value that is higher than the 
current fair market rental value set forth in the New Lease, the 
Employer will amend the New Lease to pay the Plan the higher amount, 
retroactive to January 1, 2004.

EFFECTIVE DATE: This exemption is effective as of January 1, 2004.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the notice of proposed exemption published on December 17, 2003 at 68 
FR 70308.

FOR FURTHER INFORMATION CONTACT: Ekaterina A. Uzlyan of the Department, 
telephone (202) 693-8540.

General Information

    The attention of interested persons is directed to the following:
    (1) The fact that a transaction is the subject of an exemption 
under section 408(a) of the Act and/or section 4975(c)(2) of the Code 
does not relieve a fiduciary or other party in interest or disqualified 
person from certain other provisions to which the 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) This exemption is supplemental to and not in derogation of, any 
other provisions of the Act and/or the Code, including statutory or 
administrative exemptions and transactional rules. Furthermore, the 
fact that a transaction is subject to an administrative or statutory 
exemption is not dispositive of whether the transaction is in fact a 
prohibited transaction; and
    (3) The availability of this exemption is subject to the express 
condition that the material facts and representations contained in the 
application accurately describes all material terms of the transaction 
which is the subject of the exemption.

    Signed at Washington, DC, this 10th day of February, 2004.
Ivan Strasfeld,
Director of Exemption Determinations, Employee Benefits Security 
Administration, U.S. Department of Labor.
[FR Doc. 04-3415 Filed 2-13-04; 8:45 am]

BILLING CODE 4510-29-P