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Secretary of Labor Thomas E. Perez
Proposed Exemptions; McCrosky, Feldman, Cochrane & Brock, P.C. [Notices] [08/01/1997]

EBSA (Formerly PWBA) Federal Register Notice

Proposed Exemptions; McCrosky, Feldman, Cochrane & Brock, P.C. [08/01/1997]

[PDF Version]

Volume 62, Number 148, Page 41431-41453

[DOCID:fr01au97-145]

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DEPARTMENT OF LABOR

Pension and Welfare Benefits Administration
[Application No. D-10261, et al.]

 
Proposed Exemptions; McCrosky, Feldman, Cochrane & Brock, P.C.

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 restriction 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 
request 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 
Pension and Welfare Benefits Administration, U.S. Department of Labor, 
Room N-5507, 200 Constitution Avenue, N.W., Washington, D.C. 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 (43 FR 47713, October 17, 1978) 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.

McCroskey, Feldman, Cochrane & Brock, P.C. Profit Sharing Plan and 
Trust (the Plan), Located in Muskegon, Michigan

[Application No. D-10261].

Proposed Exemption

    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, 32847, August 10, 1990). If the exemption 
is granted, the restrictions of sections 406(a) and 406 (b)(1) and 
(b)(2) of the Act and the sanctions resulting from the application of 
section 4975 of the Code, by reason of sections 4975(c)(1) (A) through 
(E) of the Code, shall not apply to the proposed cash sale (the Sale) 
by the Plan of certain improved real property located at 1440 and 1442 
Peck Street in Muskegon, Michigan (the Muskegon Property) to the 
McCroskey Development Partnership (the Partnership), a party in 
interest with respect to the Plan; provided that the following 
conditions are satisfied:
    (A) All terms and conditions of the Sale are no less favorable to 
the Plan than those which the Plan could obtain in an arm's-length 
transaction with an unrelated party;
    (B) The Sale is a one-time transaction for cash in which the Plan 
incurs no expenses;

[[Page 41432]]

    (C) The Plan receives a purchase price for the Muskegon Property 
which is no less than the greater of (1) the fair market value of the 
Muskegon Property established at the time of the sale by an independent 
qualified appraiser, or (2) $350,000;
    (D) Within sixty days of the publication in the Federal Register of 
a notice granting this proposed exemption, if granted, McCroskey, 
Feldman, Cochrane & Brock, P.C. (the Employer) files Form 5330 with the 
Internal Revenue Service and pays the applicable excise taxes which are 
due with respect to the continuation of a lease of the Muskegon 
Property by the Plan to the Employer after September 27, 1989; and
    (E) Within sixty days of the publication in the Federal Register of 
a notice granting this proposed exemption, if granted, the Employer's 
payment of rent to the Plan for the Muskegon Property from September 
27, 1989 through the date of the Partnership's purchase of the Property 
from the Plan is reviewed by an independent fiduciary to determine 
whether such rent was at all times no less than the fair market rental 
value of the Muskegon Property, and, to the extent such rent is 
determined to have been less than the fair market rental value, the 
Employer pays the Plan the amount of such deficiency together with 
interest thereon at a rate determined by the independent fiduciary to 
be appropriate to compensate the Plan for lost income on such 
deficiency amount.

Summary of Facts and Representations

    1. The Plan is a defined contribution profit sharing plan with 
individual accounts for each of its participants. The Plan is sponsored 
by McCroskey, Feldman, Cochrane & Brock, P.C. (the Employer), a 
Michigan professional corporation operating a law firm located in 
Muskegon, Michigan. The Plan had approximately 38 participants and 
beneficiaries and total assets of approximately $6,209,646 as of 
December 31, 1996. The trustees of the Plan are J. Walter Brock and 
Gary T. Neal (the Trustees), each of whom is an employee and an 11.11 
percent shareholder of the Employer.
    2. On September 23, 1975, the Plan purchased three lots of real 
property (the Original Property) from a partnership called the 
Advocates, whose partners were the shareholders of the Employer. Two 
lots of the Original Property are adjacent lots located in Muskegon 
County, Michigan (the Muskegon Property) at 1440 Peck Street and 1442 
Peck Street in Muskegon, MI. The Plan paid a purchase price of $250,000 
for the lot at 1440 Peck Street and a purchase price of $25,000 for the 
adjacent lot at 1442 Peck Street. The remainder of the Original 
Property was a third lot, located in Calhoun County (the Calhoun 
Property) at 5906 Morgan Road in Battle Creek, Michigan, and the 
purchase price for this lot was $42,500. The Employer represents that 
the Plan's purchase of the Original Property from the Advocates met the 
requirements of section 408(e) of the Act, pertaining to the purchase 
of qualifying employer real property, and was therefore exempt from the 
prohibited transactions provisions of section 406 of the 
Act.<SUP>1</SUP>
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    \1\ The Department expresses no opinion as to whether the Plan's 
purchase of the Original Property satisfied the conditions of 
section 408(e) of the Act.
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    3. Upon acquisition of the Original Property by the Plan, the 
Employer commenced to lease all three lots of the Original Property 
from the Plan for use as office locations for the Employer's law 
practice. The Employer represents that the Plan's leases of the 
Original Property to the Employer (the Original Leases) constituted 
leases of qualifying employer real property in satisfaction of the 
requirements of section 408(e) of the Act and were therefore exempt 
from the prohibitions of section 406 of the Act.<SUP>2</SUP>
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    \2\ The Department expresses no opinion as to whether the 
Original Lease satisfied the conditions of section 408(e) of the 
Act.
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    The initial Original Lease was for a ten-year term and provided for 
rent at appraised rental values. Rent was set at $3,600 per month, as 
determined by the August 1975 appraisal, for a total of $43,228 per 
year. The lease was triple net, and also specified that rent was to be 
a fixed sum for the first five years, and that for the second five 
years, annual rent would be determined by appraisal, and would reflect 
any change in the rental value of the property. The Employer represents 
that its continued lease of the Original Property from the Plan 
subsequent to the second term of the Original Lease was pursuant to 
extensions of the Original Lease and that rentals of no less than the 
subject property's fair market rental value were paid to the Plan in 
accordance with appraisals conducted in 1988, 1993 and 1995.
    On September 27, 1989, the Plan sold the Calhoun Property to an 
unrelated party, the United Association of Plumbers and Pipefitters 
Union Local 335 (the Union). The Employer represents that it was 
relocating its business to the Muskegon Property and was forced to 
abandon the Calhoun Property. The Employer represents that the Union is 
independent of and unrelated to the Employer and the Plan. Since the 
Plan sold the Calhoun Property to the Union, the Employer has continued 
to occupy the Muskegon Property and lease it from the Plan pursuant to 
extensions of the Original Lease. The Employer states that the two lots 
constituting the Muskegon Property are treated as one parcel for 
address and appraisal purposes, referred to as 1440 Peck Street, 
because the structural improvements on each lot are components of a 
single commercial structure which lies on parts of both lots. 
Hereinafter, references to the Muskegon Property are intended to 
include both 1440 and 1442 Peck Street.
    4. In anticipation of upcoming increased Plan liquidity needs, and 
in recognition that the continuation of the Employer's use and lease of 
the Muskegon Property since the Plan's sale of the Calhoun Property has 
constituted a prohibited transaction under section 406 of the Act, the 
Trustees have determined to terminate the Plan's lease of the Muskegon 
Property to the Employer by causing the Plan to sell the Muskegon 
Property. A partnership comprised of shareholders of the Employer, the 
McCroskey Development Partnership (the Partnership), has expressed to 
the Trustees a willingness to purchase the Muskegon Property at its 
full fair market value, and the Trustees are now proposing to cause the 
Plan to sell the Muskegon Property to the Partnership for cash. The 
Trustees and the Employer are requesting an exemption to enable this 
sale transaction under the terms and conditions described herein.
    5. If the exemption is granted, the Partnership will pay the Plan a 
cash purchase price for the Muskegon Property of no less than the fair 
market value of the Muskegon Property as of the date of the sale and in 
no event less than $350,000. The Muskegon Property was appraised as of 
April 11, 1995 by Stephen P. Nedeau, MAI, SRA (Nedeau), who determined 
that as of that date the Muskegon Property had a fair market value of 
$350,000. Commensurate with the sale transaction, the Trustees will 
cause the appraisal by Nedeau to be updated as of the sale date, and 
the purchase price will be cash in the amount of (a) the Muskegon 
Property's fair market value according to such updated appraisal, or 
(b) $350,000, whichever is greater. The Plan will pay no expenses 
related to the transaction.
    6. The Department is not proposing exemptive relief for the 
continuation of the lease by the Employer of the Muskegon Property from 
the Plan (the Continued Lease) after September 27, 1989, the date on 
which the Plan sold the Calhoun Property. The Employer

[[Page 41433]]

recognizes that the Continued Lease has constituted a prohibited 
transaction under the Act and the Code for which no exemptive relief is 
proposed herein. Accordingly, the Employer represents that it will pay 
the excise taxes which are applicable under section 4975(a) of the Code 
by reason of such Continued Lease within sixty (60) days of the 
publication in the Federal Register of a notice granting the exemption 
proposed herein.
    7. The Employer represents that the rentals paid to the Plan during 
the Continued Lease have provided the Plan with appropriate amounts of 
rent in accordance with updated appraisals of the Muskegon Property. 
However, because the amount of annual rent has remained constant under 
the Continued Lease, as an additional condition of this exemption, if 
granted, the Employer will cause a review of the rentals paid to the 
Plan and the Muskegon Property's fair market rental values during the 
Continued Lease by an independent Plan fiduciary in order to determine 
whether the Plan received rentals of no less than the fair market 
rental values of the Muskegon Property during the Continued Lease. The 
Employer represents that the independent fiduciary for this purpose 
will be either Nedeau, who performed the most recent appraisal of the 
Muskegon Property, or the trust department of FMB Lumberman's Bank in 
Muskegon, Michigan, which represents itself to be independent of the 
Employer. In the event such independent fiduciary determines that rent 
payments received by the Plan were less than the Muskegon Property's 
fair market rental value for any period during the Continued Lease, the 
Employer will pay the Plan the amount of any such deficiency with 
interest on such amount at a rate determined by the independent 
fiduciary to compensate the Plan appropriately for lost income.
    8. In summary, the applicant represents that the transaction 
satisfies the statutory criteria of section 408(a) of the Act and 
section 4975(c)(2) of the Code because: (1) The proposed sale will be a 
one-time cash transaction; (2) The Plan will experience no losses nor 
incur any expenses from the transaction; (3) The Plan will receive cash 
for the Muskegon Property in the amount of no less than the Muskegon 
Property's updated fair market value as of the sale date and in no 
event less than $350,000; and (4) The transaction will enable the 
termination of the ongoing Continued Lease of the Muskegon Property by 
the Plan to the Employer, which constitutes a prohibited transaction.

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

TCW Group, Inc., Trust Company of the West, TCW Funds Management, Inc., 
TCW Galileo Funds, Inc. (collectively; TCW), Located in Los Angeles, 
California

[Application No. D-10319]

Proposed Exemption

Section I. Covered Transactions

    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, 32847, August 10, 1990).<SUP>3</SUP> 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)(l) (A) through (D) of the Code, 
shall not apply to the acquisition or redemption of units (the Units) 
in the TCW Life Cycle Trusts (the Trusts, as defined in Section III) 
established in connection with such Plans' participation in the TCW 
Portfolio Solutions Program (the Program) by individual account plans 
described in section 3(34) of the Act (the Plans), including Plans 
sponsored by TCW, and the acquisition or redemption of shares (the 
Shares) in the TCW Galileo Funds (the Funds, as defined in Section III) 
by the Trusts.
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    \3\ For purposes of this proposed exemption, reference to 
provisions of Title I of the Act, unless otherwise specified, refer 
also to the corresponding provisions of the Code.
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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 of advice, and to the receipt of fees as a 
result thereof, in connection with the investment by the Plans in the 
Trusts under the Program.
    This proposed exemption is subject to the following conditions set 
forth below in Section II.

Section II. General Conditions

    A. The terms of each purchase or redemption of the Units in the 
Trusts are at least as favorable to an investing Plan as those 
obtainable in an arm's length transaction with an unrelated party.
    B. The participation of a Plan in the Program will be expressly 
authorized in writing by a fiduciary of the Plan who is independent of 
TCW.<SUP>4</SUP> With respect to the Plans sponsored by TCW, this 
condition will be deemed satisfied for purposes of the purchase or 
redemption of Units in the Trusts, if the purchase and redemption of 
Shares in the Funds by the Trusts meets the conditions of Prohibited 
Transaction Exemption (PTE) 77-3 (42 FR 18743, April 8, 1977).
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    \4\ In the case of a Plan sponsored by TCW, such fiduciary need 
not be independent of TCW.
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    C. Participation in the Program will be limited to Plans which have 
a minimum of $5,000,000 in plan assets as of the most recent year.
    D. No Plan will pay a fee or commission by reason of the 
acquisition or redemption of Units in the Trusts or Shares in the 
Funds.
    E. The price paid or received by the Plans for the Units in the 
Trusts is the ``net asset value'' per Unit, at the time of the 
transaction. The Trusts will buy and sell shares in the Funds on the 
same basis as other shareholders.
    F. The total fees paid to TCW and its affiliates by each Plan for 
the provision of services in connection with its investment in the 
Units of the Trusts under the Program does not exceed ``reasonable 
compensation'' within the meaning of section 408(b)(2) of the Act. In 
this regard, the total amount paid by a Trust to TCW or unaffiliated 
third persons for services necessary to operate the Trusts, and for TCW 
to provide what may be considered investment advice, will not exceed 1% 
per annum of the average daily ``net asset value'' of the shares of the 
Funds and cash held by such Trust.
    G. TCW will not receive any fees from the Plans whose participants 
(the Participants) receive recommendations concerning investment in a 
Trust, nor from the Trusts in which the Plans invest. Notwithstanding 
the foregoing, TCW will not be precluded from receiving: (i) fees from 
the Funds which are paid by other investors in the Funds, and which are 
permissible under the Investment Company Act of 1940, as amended (the 
1940 Act); (ii) reimbursement for ``direct expenses'' within the 
meaning of 29 CFR 2550.408c-2 in connection with the operation of the 
Program; or (iii) reimbursement for direct expenses which TCW pays to 
unaffiliated third persons for goods and services provided to the 
Trusts and/or Plans under the Program.
    H. Any investment advice given to the Participants by TCW under the 
Program will be based on the responses provided by the Participants to 
worksheet questions which are developed and designed by an independent 
financial

[[Page 41434]]

expert (the Financial Expert, as defined in Section III (F)) and the 
independent behavioral expert (the Behavioral Expert as defined in 
Section III (G), collectively; the Experts).
    I. Any investment advice given to the Participant will be 
implemented only at the express direction of the Participant.
    J. Under the Program, TCW will give investment advice to the 
Participants that is limited to the Trusts, a Money Market Fund, a 
Guaranteed Investment Contact (GIC) or a similar investment vehicle 
that may or may not be affiliated with TCW.<SUP>5</SUP>
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    \5\ TCW will not receive any fees or other compensation with 
respect to recommendations regarding investments in an unrelated 
Money Market Fund, GIC or similar investment vehicle.
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    K. The compensation of neither Expert is affected by the decisions 
made by the participants and beneficiaries regarding investment of the 
assets of their accounts among the Trusts.
    L. To the extent any assistance is provided by TCW, or unaffiliated 
third persons, to the Participants in completing the worksheets and 
questions designed by the Experts, such assistance is provided by 
individuals whose compensation is not affected by the investment by the 
participants and beneficiaries of the assets of their accounts among 
the Trusts.
    M. With respect to its participation in the Program, an independent 
Plan fiduciary must receive, prior to the Plan's investment in any of 
the Trusts, complete and detailed written information regarding the 
Trusts and the Funds which will include, but may not be limited to:
    (1) A description of the Program;
    (2) The allocation of the Funds in each Trust specified by the 
Financial Expert, and the basis upon which the Funds in each Trust will 
be rebalanced so that the Funds' proportionate value in each Trust 
equals that specified by the Financial Expert;
    (3) Upon request by the Plan Fiduciary, the current basis upon 
which the asset allocation of the Trusts was derived;
    (4) Full disclosure of all the expenses charged to the Trusts, and 
how such expenses are allocated;
    (5) Full disclosure of all the fees charged by the Funds, which may 
be accomplished by providing the current prospectus for each of the 
Funds comprising a Trust; and
    (6) A copy of the proposed exemption and, if granted, the final 
exemption, as published in the Federal Register.
    N. (1) Prior to investing in a Trust, each Participant will receive 
full disclosures which will include, but may not be limited to:
    (a) Disclosure regarding composition of the Trusts, and a 
description of the underlying Funds;
    (b) Upon request, a Participant will also receive a copy of the 
Funds' prospectus;<SUP>6</SUP> and
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    \6\ TCW anticipates that most Plans which participate in the 
Program will comply with section 404(c) of the Act. Section 404(c) 
of the Act requires, in part, that specific disclosures be provided 
by the Plans to the participants and beneficiaries. See 29 CFR 
2550.404c-1 (b)(2)(i)(A) and (b)(2)(i)(B)(2) (iv) and (v).
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    (c) The Participant can meet with a facilitator familiar with the 
Program, or contact such a facilitator using a toll-free number.
    (2) Subsequent to his participation in the Program, each 
Participant will receive the following disclosures which will include, 
but may not be limited to:
    (a) Written confirmations of purchase and redemption transactions 
for each Participant within 10 days of each such transaction;
    (b) Telephone access to the quotations of the Participant's account 
balance; and
    (c) A periodic newsletter describing the Trusts' performance during 
the preceding period, market conditions and economic outlook and, if 
applicable, prospective changes in the asset allocation model and the 
reasons for the change.
    O. Each Plan Fiduciary will receive the following written 
disclosures with respect to its ongoing participation in the Program 
which will include, but may not be limited to:
    (1) A quantitative annual report which will include--
    (a) Performance Summary for each Fund;
    (b) Schedule of Investments for each Fund;
    (c) Statements of Assets and Liabilities for each Fund;
    (d) Statements of Operations for each Fund;
    (e) Statements of Changes in Net Assets for each Fund;
    (f) Notes to Financial Statements, which include but are not 
limited to, primary investment objective of each Fund;
    (g) The performance and rate of return achieved for each Trust and 
the Funds in which the Trust is invested; and
    (h) A breakdown of all expenses and fees at the Fund and Trust 
levels.
    P. (1) Except as provided in Section II(P)(2) below, the 
independent Plan Fiduciary will receive, at least 30 days advance 
notice of any material change in the information described in Section 
II(M) (2) or (3) regarding the composition of the Trusts or the basis 
on which the Trusts' assets are rebalanced, and will receive at least 
30 days advance notice of any material increase in expenses at the 
Trust level described in Section II(M)(4);
    (2) The Financial Expert will have the sole responsibility for 
determining the materiality of any changes in the information in 
Section II(M) (2) or (3). TCW will determine the materiality of any 
changes described in Section II(M)(4) regarding the expenses charged to 
the Trusts. For any changes in the information in Section II(M) (2) or 
(3) which are not material, the independent Plan Fiduciaries will be 
notified within 10 days of such change. For any changes in the 
information in Section II(M)(4) which are not material the independent 
Plan Fiduciary will be notified at least quarterly. Independent Plan 
Fiduciaries will be afforded, at all times, a reasonable opportunity to 
terminate their Plans' participation in the Program as described in 
Section II(Q)(2) below; and
    (3) Under extraordinary circumstances outside the control of TCW, 
the independent Plan Fiduciary may not be provided advance notice by 
TCW of material changes in the information listed in Section II(M) (2) 
or (3) regarding the composition of the Trusts or the basis on which 
the Trusts' assets are rebalanced. Under such circumstances, the Plan 
Fiduciaries will be notified within 10 days of any such change. The 
Financial Expert will determine whether the circumstance is 
extraordinary and if the change in the composition of the Trusts or in 
the basis for rebalancing is material.
    Q. (1) The Units in the Trusts will be redeemed by TCW, at no 
charge. Redemption requests received in proper form prior to the close 
of trading on the New York Stock Exchange (NYSE) will be affected at 
the net asset value per Unit determined on that day. Redemption 
requests received after the close of regular trading on the NYSE will 
be effected at the net asset value at the close of business of the next 
day, except on weekends or holidays when the NYSE is closed; and
    (2) The Plans can redeem their Units in the Trusts on five business 
days (or less) notice.
    R. The Trusts permit participants and beneficiaries to purchase or 
redeem an interest in the Trust on any day that the shares of the Funds 
contained within the Trust can be purchased or redeemed. This paragraph 
(R) does not preclude any Plan from restricting such purchases and 
redemptions to a less frequent basis.
    S. All transactions involving securities owned by the Funds will be 
executed through brokers in which TCW has no interest and who are 
unrelated to

[[Page 41435]]

TCW. TCW will not receive any consideration from such brokers in 
connection with their selection, or for effecting or executing such 
transactions other than research which will benefit the shareholders of 
the Funds, including the Trusts. TCW brokerage practices will 
reasonably comply with the requirements of section 28(e) of the 
Securities and Exchange Act of 1934.
    T. (1) The independent Fiduciaries of Plans participating in the 
Program will receive full written disclosure, in a statement separate 
from a Fund prospectus, of any proposed increases in the rates of 
advisory or other fees charged by TCW to the Funds for services (or of 
any material increase in expenses charged by TCW to the Funds or fees 
charged by TCW for internal accounting services for the Funds) at least 
30 days prior to the effective date of such increase, accompanied by a 
termination form (the Termination Form, as described in (2) below) and 
shall receive full written disclosure in a Fund prospectus, or 
otherwise, of any such increases in the rate of fees charged by TCW to 
the Funds; and
    (2) The Termination Form shall provide an election to terminate 
participation in the Program and shall contain instructions on the use 
of the form that includes the following information: (a) the 
authorization to participate in the Program is terminable at will by 
the Plan, without penalty to the Plan, upon receipt by TCW of written 
notice from the Plan; and (b) failure to return the Termination Form 
will result in the continued authorization of the Plan's participation 
in the Program, including investment in the Trusts.
    U. TCW maintains, for a period of six years, the records necessary 
to enable the persons described in paragraph (V) of this Section II to 
determine whether the conditions of this exemption have been met, 
including a record of each recommendation made to the participants and 
beneficiaries, and their subsequent investment choices, except that--
    (1) A prohibited transaction will not be considered to have 
occurred if, due to the circumstances beyond the control of TCW 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 TCW, 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 not available for examination as required 
by paragraph (V)(1) of this Section II below.
    V. (1) Except as provided in subparagraph (2) of this paragraph (V) 
and notwithstanding any provisions of subsections (a)(2) and (b) of 
section 504 of the Act, the records referred to in paragraph (U) of 
this Section II are unconditionally available at their customary 
location for examination 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 or representative of such employer, and
    (d) Any participant or beneficiary of any participating Plan, or 
any duly authorized representative of such participant or beneficiary.
    (2) None of the persons described in paragraphs (1) (b)-(d) of this 
paragraph (v) shall be authorized to examine trade secrets of TCW, or 
commercial or financial information which is privileged or 
confidential.

Section III. Definitions

    A. The term Trust or Trusts means a commingled trust or trusts 
which satisfy the requirements of IRS Revenue Ruling 81-100, 1981-1 
C.B. 326 which invest exclusively in one or more of the portfolios of 
TCW Galileo Funds, Inc., cash or cash equivalents.
    B. The term Fund or Funds means one or more of the portfolios of 
TCW Galileo Funds, Inc., an open-end investment company registered 
under the Investment Company Act of 1940, as amended (the 1940 Act).
    C. The term TCW means the TCW Group, Inc., and any affiliates 
thereof as defined below in paragraph (D) of this Section III.
    D. The term affiliate of a person includes:
    (1) Any person directly or indirectly through one or more 
intermediaries, controlling, controlled by, or under common control 
with the person;
    (2) Any officer, director, employee, relative, or partner in any 
such person; and
    (3) Any corporation or partnership of which such person is an 
officer, director, partner, or employee.
    E. The term control means the power to exercise a controlling 
influence over the management or policies of a person other than an 
individual.
    F. The term Financial Expert means Professor Jeffrey F. Jaffe, 
Ph.D., or a successor Financial Expert. Less than 5 percent (5%) of 
Professor Jaffe's gross income, for federal income tax purposes, in his 
prior tax year, will be paid by TCW in the immediately subsequent tax 
year. If the Financial Expert has any income which is not included in 
the gross income (e.g., interest income which is exempt from federal 
income taxes), such income may be added to his gross income for his 
purpose. In the event TCW determines to replace Professor Jaffee or any 
of his successors, TCW will send a letter to the Department 60 days 
prior to such replacement. The letter will specify that the successor 
Financial Expert has responsibilities, experience and independence 
similar to those of Professor Jaffee. If the Department does not object 
to the successor, the new appointment will become effective on the 60th 
day after the Department receives such letter.
    G. The term Behavioral Expert means Professor Shlomo Benartzi, or a 
successor Behavioral Expert. In the event TCW determines to replace 
Professor Benartzi or any of his successors, TCW will send a letter to 
the Department 60 days prior to such replacement. The letter will 
specify that the successor has responsibilities, experience and 
independence similar to that of Professor Benartzi. If the Department 
does not object to the successor, the new appointment will become 
effective on the 60th day after the Department receives such letter.
    H. The term net asset value of a Trust is defined to mean the fair 
market value of shares in the Funds and cash, minus the accrued 
expenses of a Trust.

EFFECTIVE DATES: If granted, this exemption will be effective as of the 
date this notice of proposed exemption is published in the Federal 
Register.

Summary of the Facts and Representations

    1. The TCW Group, Inc., is the holding company for a group of 
wholly-owned subsidiaries that provide a broad range of investment 
management services. Trust Company of the West is a trust company 
chartered by the State of California, and is one of the largest trust 
companies in the United States. TCW Funds Management, Inc., TCW Asset 
Management Company, and Continental Asset Management Corp., are 
investment advisors registered with the Securities and Exchange 
Commission under the Investment Advisors Act of 1940. TCW Group Inc. 
also contains other registered investment advisor entities. As of 
September 30, 1996, TCW Group, Inc. was owned 90% by employees and 10% 
by directors.

[[Page 41436]]

    TCW is primarily in the business of providing investment management 
services. TCW manages pools of tax-exempt capital for pension and 
profit sharing funds, jointly trusteed retirement, health and welfare 
funds, public employee retirement funds, endowments and foundations. 
TCW also manages a number of mutual funds for retail investors, and 
manages assets for insurance companies, foreign investors, and high net 
worth individuals.
    As of September 30, 1996, TCW had more than $50 billion in assets 
under management, representing over 1,200 institutional and private 
clients. As of the same date, TCW had a staff of more than 500 
individuals, including over 200 investment and administrative 
professionals. This investment staff includes more than 50 portfolio 
managers/analysts, approximately 60 research personnel and 14 traders. 
TCW also employs more than 40 client relations professionals and more 
than 60 administrative professionals.
    2. TCW intends to offer the Program entitled ``TCW Portfolio 
Solutions'' under which TCW will render investment advice to the 
Participants <SUP>7</SUP> in the Plans. Participation by Plans in the 
Program will be approved by Plan Fiduciaries who are independent of 
TCW. It is represented that virtually all of the Plans participating in 
the Program will be designed to comply with the provisions of section 
404(c) of the Act. The Plans will be individual account plans described 
in section 3(34) of the Act. Once the Program is approved by the Plan 
Fiduciary, TCW will provide each Participant, who wants to receive a 
recommendation regarding investments, with a worksheet (Worksheet), in 
writing or electronically, as described below. The Worksheets consist 
of a series of questions, designed to assess the Participants' 
retirement needs and levels of risk tolerance. Upon completion of the 
Worksheets, a Participant's responses will be analyzed and each 
Participant will receive a written recommendation by TCW of an 
appropriate Life Cycle Trust (i.e. Trust) for investment. Initially, 
the Program will offer four separate commingled Trusts (more may be 
added in the future), and, if not otherwise available under a Plan, a 
separate Money Market Fund and a Guaranteed Investment Contract (GIC). 
At the request of the Plan, the Money Market Fund, the GIC, or a 
similar investment vehicle may or may not be affiliated with 
TCW.<SUP>8</SUP>
---------------------------------------------------------------------------

    \7\ For purposes of this proposed exemption, the term 
Participants includes participants and beneficiaries who have the 
power to direct the investments of their account balances.
    \8\ See Footnote 3, supra.
---------------------------------------------------------------------------

    Each Trust is a group trust established pursuant to IRS Revenue 
Ruling 81-100, 1981-1 C.B. 326. Application will be made to the 
Internal Revenue Service (IRS) for a favorable determination as to the 
tax-exempt status of each Trust. TCW is the trustee of each Trust. Each 
Trust will invest exclusively, but in varying proportions, in the Funds 
which are the thirteen mutual funds (more funds may be added in the 
future) offered by TCW Galileo Funds, Inc., an open-end investment 
company.<SUP>9</SUP>
---------------------------------------------------------------------------

    \9\ Upon the request of a very large plan, TCW may construct an 
individual arrangement utilizing separate Trusts complying with the 
safeguards discussed herein.
---------------------------------------------------------------------------

    3. An independent Financial Expert will develop a methodology for 
assessing the Participants' retirement funding needs. An independent 
Behavioral Expert will develop a methodology for assessing the 
Participants' levels of loss aversion. A computer program will be 
designed by programmers unaffiliated with TCW which will incorporate 
the methodologies designed by the two Experts. Information from the 
Participant's Worksheet will be input into the computer program and 
will produce an investment recommendation presented by TCW to the 
Participant. This recommendation will result solely from the output of 
the computer program, and neither TCW nor any of its affiliates will be 
able to change or affect the output. The recommendation will reflect 
the methodology developed by the Financial Expert, except that the 
methodology developed by the Behavioral Expert may result in a more 
conservative recommendation for a Participant whose Worksheet responses 
reflect a high risk aversion level. The more conservative 
recommendation may result from the Participant's risk profile, which is 
developed through the responses to questions on the Worksheet regarding 
risk tolerance and will only be used to recommend the same or a more 
conservative Trust than would have been recommended if only questions 
regarding the financial requirements of the Participant were contained 
in the Worksheets. Under the Program, the Participant retains 
discretion and may disregard the recommendation of TCW and invest in 
another Trust or in the separate Money Market Fund or GIC offered under 
the Program.
    The mix of the Funds in the Trusts will accommodate different 
investment strategies and risk tolerances. Each Trust will be designed 
to provide an asset allocation model (Asset Allocation Model) for four 
different profiles of Participants. The four profiles will be based on 
the Participants' financial objectives, time horizon, other savings 
(including amounts held in other plans), and risk tolerance. The 
independent Financial Expert will periodically adjust the Asset 
Allocation Models based on investment goals and risk tolerances 
assigned to each Asset Allocation Model, as well as any changes in the 
economy and market conditions. The Trusts range from aggressive 
(portfolios invest in equities) to conservative (portfolios invest in 
fixed income instruments). The Trusts may comprise some or all of the 
Plan's investment alternatives. As described in paragraph 19 below, TCW 
will incur expenses for operating the Program at the Trust level, such 
as, for example, expenses paid to third parties. TCW will receive only 
reimbursement of direct expenses for operating the Program. The 
structure of the Program is described in more detail below.
    4. TCW Galileo Funds, Inc. (Galileo) is an open-end management 
investment company registered under the Investment Company Act of 1940, 
as amended (the 1940 Act).<SUP>10</SUP> Galileo currently offers shares 
in thirteen Funds. Galileo may create additional Funds, and such 
additional Funds may be considered for investment by the Trusts under 
the rebalancing of the Trusts to be performed periodically by the 
Financial Expert.<SUP>11</SUP> The Funds have a Registration Statement 
under the Securities Act of 1933, as amended (the 1933 Act) and the 
1940 Act. The Registration Statement has been declared effective by the 
Securities and Exchange Commission (SEC) and is updated at least 
annually to assure

[[Page 41437]]

compliance with the securities laws. The Funds are no-load mutual funds 
which trade at their respective net asset value. The Trusts trade at 
the net asset value of the amalgam of the Funds in which they are 
invested, plus any cash they hold. The Funds are available to 
institutional investors and individuals with a high net worth, and 
require a minimum initial investment of $250,000 and a minimum of 
$25,000 for additional investments.
---------------------------------------------------------------------------

    \10\ The applicant represents that Galileo is strictly regulated 
and its fees have to be approved by an independent Board of 
Directors. Specifically, section 15 of the 1940 Act contains certain 
procedures for the adoption and renewal of investment advisory 
contracts. This section 15 requires, among other things, that the 
terms of investment advisory agreements must be approved by a 
majority of directors, including a majority of the independent 
directors, cast in person at a meeting called for purpose of voting 
on such approval. Section 15(c) of the 1940 Act imposes a duty on 
the directors to request and evaluate, and the investment advisor to 
furnish, whatever information is necessary to evaluate the 
investment advisory agreement.
    The standards regarding the approval of an investment advisory 
agreement are governed by section 36(b) of the 1940 Act, which 
provides that an investment advisor to a registered investment 
company has a fiduciary duty with respect to its receipt of 
compensation for services and other payments.
    \11\ It is the sole responsibility of the Financial Expert to 
determine whether to include an additional Fund as an investment 
under one or more of the Trusts.
---------------------------------------------------------------------------

    5. Galileo has entered into a contract with TCW Funds Management, 
Inc. (the Adviser), pursuant to which Galileo has employed the Adviser 
to: manage the investment of its assets; administer its day-to-day 
operations; place purchase and sale orders of the Funds' securities; 
and manage Galileo's business affairs (subject to control by the Board 
of Directors of Galileo). Under the advisory agreement (the Advisory 
Agreement), the Funds pay the Adviser certain fees for the services 
rendered, facilities furnished, and the Funds' expenses paid by the 
Adviser. (See Table I). The Funds are entirely no-load, and do not 
charge fees to purchase or exchange shares. Also, the Funds do not 
charge any ongoing marketing expenses (i.e. fees pursuant to Rule 12b-1 
under the 1940 Act).
    6. The following Table I illustrates the expenses and fees incurred 
by the Funds' shareholders for the fiscal year ending October 31, 1996. 
The applicant represents that these fees and expenses are subject to 
change. Expenses are expressed as a percentage of each Fund's average 
net asset value.<SUP>12</SUP>
---------------------------------------------------------------------------

    \12\ For the Convertible Securities Fund and Money Market Funds 
offered inside the Trusts, the Adviser has agreed to reduce its 
investment management fee. Alternatively, the Adviser will pay these 
Funds' operating expenses, so as to limit each respective Fund's 
total expenses to 0.95% and 0.40%, of its average net asset value 
until December 31, 1997.

      Table I.--Shareholder Transaction Expenses For All Portfolios     
------------------------------------------------------------------------
                                                                        
------------------------------------------------------------------------
Sales Load Imposed on Purchases..............  None.                    
Sales Load Imposed on Reinvested Dividends...  None.                    
Contingent Deferred Sales Load...............  None.                    
Redemption Fees..............................  None.                    
Exchange Fees................................  None.                    
------------------------------------------------------------------------


                                                                                            Fund Name                                                                                           
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Core    Long term                                                                                                     
         Annual fund operating expenses            Money       High      fixed     mortgage   Mortgage   Mid-cap   Convertible     Core     
Small     Earnings     Asia     Emerging    Latin  
                                                   market     yield      income     backed     backed     growth    securities    equity      cap      momentum  
Pacific    markets    America 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Management fees................................       .21%       .75%       .40%       .50%       .50%       .93%        .62%        .75%      1.00%     
1.00%      1.00%      1.00%      1.00%
Rule 12b-1 fees................................        <SUP>(1)        <SUP>(1)        <SUP>(1)        <SUP>(1)       
<SUP>(1)        <SUP>(1)         <SUP>(1)         <SUP>(1)        <SUP>(1)        <SUP>(1)       
<SUP>(1)        <SUP>(1)        <SUP>(1)
Other expenses.................................       .19%       .15%       .36%       .18%       .19%       .27%        .33%        .07%       .14%       .43% 
     .44%       .41%       .44%
Total fund operating expenses..................       .40%       .90%       .76%       .68%       .69%      1.20%        .95%        .82%      1.14%     
1.43%      1.44%      1.41%      1.44%
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
None.                                                                                                                                                                                           

    The independent Fiduciaries of Plans participating in the Program 
will receive full written disclosure, in a statement separate from a 
Fund prospectus, of any proposed increases in the rates of advisory or 
other fees charged by TCW to the Funds for services (or of any material 
increase in expenses charged by TCW to the Funds or fees charged by TCW 
for internal accounting services for the Funds) at least 30 days prior 
to the effective date of such increase, accompanied by a termination 
form (the Termination Form, as described below) and shall receive full 
written disclosure in a Fund prospectus, or otherwise, of any such 
increases in the rate of fees charged by TCW to the Funds.
    The Termination Form shall provide an election to terminate 
participation in the Program and shall contain instructions on the use 
of the form that includes the following information: (a) The 
authorization to participate in the Program is terminable at will by 
the Plan, without penalty to the Plan, upon receipt by TCW of written 
notice from the Plan; and (b) failure to return the Termination Form 
will result in the continued authorization of the Plan's participation 
in the Program, including investment in the Trusts.
    7. TCW will engage the Financial Expert to construct Asset 
Allocation Models for the Trusts, using generally accepted principles 
of modern portfolio theory. The Program also permits the creation of 
individualized Trusts whose asset class composition may be modified by 
the Plan's Independent Fiduciary. However, the Financial Expert has to 
approve such modification as being appropriate for that particular 
Trust. TCW represents that investment in such individualized Trusts 
will be limited to the Plan for which such a Trust was created.
    Initially, the Financial Expert will be Professor Jeffrey Jaffe, 
Ph.D., who is currently on the faculty of the Wharton School. Mr. Jaffe 
received a Ph.D. in finance in 1973 from the University of Chicago's 
Graduate School of Business. He has been a frequent contributor to the 
Quarterly Economic Journal, the Journal of Finance, the Journal of 
Financial and Quantitative Analysis, and the Financial Analysts 
Journal. Mr. Jaffe is the Academic Director of several Wharton 
Executive Education Programs, which he also teaches. In the event that 
TCW determines to replace Professor Jaffe or any of his successors, TCW 
will send a letter to the Department 60 days prior to such replacement. 
The letter will specify that the successor Financial Expert has the 
responsibilities, experience and independence similar to those of 
Professor Jaffe. If the Department does not object to the Successor 
Financial Expert, the new appointment will become effective on the 60th 
day after the Department receives such letter.
    Mr. Jaffe, as the Financial Expert, has no pre-existing 
relationship with TCW and its affiliates. Mr. Jaffe is independent from 
and is not under the control of TCW and its affiliates. The investment 
decisions made by the Participants will not affect the fees paid to the 
Financial Expert. Mr. Jaffe will receive compensation from TCW for 
serving as the Financial Expert. Less than 5% of Professor Jaffe's 
gross income, for federal income tax purposes, in his prior tax year, 
will be paid by TCW in the immediately subsequent tax year. If 
Professor Jaffe, as the Financial Expert, has any income which is not 
included in the gross income (e.g., interest income which is exempt 
from federal income taxes), such income may be added to his gross 
income for this purpose.
    8. As stated above, the Asset Allocation Models will be developed 
and maintained by the Financial Expert and will be assigned specific 
investment goals and risk tolerances. Under each Asset Allocation 
Model, the Trusts will invest in specific Funds and will hold certain 
amounts of these Funds so as to be in compliance with the prescribed 
Asset Allocation Model. TCW may assist the Financial Expert by 
providing certain background information for the

[[Page 41438]]

development of the Asset Allocation Models. In this regard, TCW may 
supply the Financial Expert with algorithms, studies, analytics, 
research, models, papers and any other relevant materials. The 
Financial Expert may also seek the assistance of other entities in 
formulating the Asset Allocation Models. In all cases, however, the 
Financial Expert retains the sole control and discretion for the 
development and maintenance of the Asset Allocation Models.
    The Trusts' holdings of the Funds will be periodically rebalanced 
by TCW to maintain compliance with specific Asset Allocation Models. 
However, the rebalancing procedures will not involve any discretion on 
the part of TCW or its affiliates. In this connection, the Financial 
Expert will develop a mechanical formula to rebalance the relative 
value of the Funds in each Trust on a pre-determined basis. The 
Financial Expert also will determine the timing of the rebalancing and 
may also periodically adjust the Asset Allocation Model.
    9. TCW will also retain a behavioral expert (the Behavioral Expert) 
to formulate a risk profile for each Participant based on each 
Participant's risk tolerance. As described below, the Behavioral Expert 
is Schlomo Benartzi, a professor at UCLA's Anderson School of 
Management. Professor Benartzi received his Ph.D. in Behavioral Finance 
and Mental Accounting from Cornell University's Johnson School of 
Management. The Behavioral Expert is independent of and is not under 
common control of TCW and its affiliates. The fees paid to the 
Behavioral Expert by TCW for serving as the Behavioral Expert will not 
be affected by the investment decisions made by the Participants.
    10. The Program will be made available to Plans which have a 
minimum of $5 million in assets. The Plan Fiduciaries will determine 
whether the Program is appropriate for their Plans. To assist the Plan 
Fiduciaries in making this determination, TCW will provide: a brochure 
describing the Program; a contract containing the terms and conditions 
of the Program which must be executed by the Plan Fiduciary before the 
Program is offered to the relevant Plan Participants; full disclosure 
concerning the composition of the Trusts and, upon request, the basis 
by which the Asset Allocation Model for each Trust was derived (TCW may 
require Plan Fiduciaries to keep such basis confidential, except as 
required by law); a reference guide/disclosure document providing 
detailed information as to how the Program works; the fees charged to 
the Funds; the expenses charged at the Trust level; and related 
information.
    TCW will also provide the Plan Fiduciaries with a quantitative 
annual report, based on raw data supplied by the Plans. The annual 
report will enable the Plan Fiduciaries to determine whether the 
Program has increased or maintained Plan participation, or has achieved 
more appropriate asset allocation for the investment of the Plan 
Participants' accounts. Such report will disclose the extent to which 
the Plan Participants followed TCW's recommendations. The annual report 
will also include the performance and rate of return achieved for each 
Trust and the Funds in which it is invested, and will contain a 
breakdown of all expenses and fees at the Fund and Trust levels.
    11. The applicants represent that the Program will assist Plan 
Fiduciaries in achieving increased Plan participation, and assisting 
Participants in attaining appropriate asset allocation for their 
individual accounts. In accordance with their responsibilities under 
Title I of the Act, the Plan Fiduciaries will review the Program before 
offering it under their Plans.<SUP>13</SUP>
---------------------------------------------------------------------------

    \13\ In this regard, the general standards of fiduciary conduct 
promulgated under the Act apply to the Plan Fiduciaries 
participation in the Program. Section 404 of the Act requires, among 
other things, that a fiduciary discharge his or her duties solely in 
the interest of the participants and beneficiaries and in a prudent 
fashion. Accordingly, the Plan Fiduciary must act prudently when 
deciding to enter the Program, and in considering the fees to be 
paid to TCW or third parties thereunder. The Department expects the 
Plan Fiduciary, prior to entering into the Program, to fully 
understand the operation of the Program and the compensation paid 
thereunder, following disclosure by TCW of all relevant information 
pertaining to the Program.
---------------------------------------------------------------------------

    12. Under the Program, TCW will provide each Plan Participant, in 
writing or otherwise, with Worksheets to elicit from the Participants 
their retirement funding needs and level of loss aversion. The 
Worksheets will consider each Participant's savings, liquidity needs, 
present and future marginal income tax brackets, other financial assets 
(e.g., amounts in other plans), personal assets, other funding sources 
(e.g., inheritance), and investment time horizon. The Worksheets will 
be developed by the Behavioral Expert and the Financial Expert. The 
risk profile, developed through the use of the Worksheets, will be used 
by TCW only to recommend to the Participants the same or a less 
aggressive Trust than it would have recommended if the risk profile had 
not been developed and was not considered. TCW will disclose to the 
Participants the reason for, and the effects of, the risk profile.
    The Worksheets will be provided in different formats to accommodate 
all Participants. It is anticipated that the Worksheets will be 
provided in hard-copy with written instructions at employee meetings 
and general information meetings, through the Intranet (a secured 
access subset of the Internet), on computer terminals at the office of 
the Plan Fiduciary, on the Plan Fiduciary's page on the world-wide web, 
etc. If a computer-proficient Participant does not understand a 
question, he will be able to receive a detailed answer via the 
computer. The Participant can also meet with a facilitator familiar 
with the Program, or contact the facilitator by telephone using an 800 
toll-free number. The facilitator may, if the Participant chooses, 
complete the Worksheets based on information furnished by or on behalf 
of the Participant. The compensation of such personnel will not be 
affected by particular Trust recommendations or the allocation of 
investments in the Trusts and/or Money Market Fund, Guaranteed 
Investment Contract or similar vehicle. However, such personnel may 
receive enhanced compensation based on the amount invested in the 
entire Program by all Participants, or by the Participants which they 
or their teams assist.
    13. All the recommendations made by TCW to the Participants 
regarding specific Trusts, will be based solely from inputting the 
Participant information into the computer program which is designed 
using parameters provided by the Financial Expert and the Behavioral 
Expert. Any computer programmers who are retained to formulate such 
programs will have no affiliation with TCW. Neither TCW nor any of its 
affiliates will have any discretion regarding the output of the 
Program. Under the Program, the Participant retains discretion and may 
disregard the recommendation of TCW and invest in another Trust. 
Further, if the Participant does not complete the Worksheet, the 
Participant may elect which Trust to invest in. The Program imposes no 
limit on the frequency with which a Participant may change his 
investment election. However, Plan sponsors may impose other limits 
concerning frequency. The Program is designed to recommend a single 
Trust to the Plan Participants. However, if a Plan wishes to permit its 
Participants to invest in more than one Trust, TCW will modify the 
Program to permit such investments. However, only one Trust will be 
recommended by TCW.

[[Page 41439]]

    14. The applicant believes that short-term market volatility has 
influenced investors to ``buy high and sell low''. In this regard, 
DALBAR Financial Services, Inc., (DALBAR) prepared a study titled 
Quantitative Analysis of Investor Behavior which tracked investor cash 
flows in and out of mutual funds during the period January 1984 through 
September 1993. <SUP>14</SUP> The study concluded that the investors' 
tendency to bail out of equity and bond funds during dips in the 
market, and buy back during recoveries, hurt overall performance. Over 
the 10 year period studied, investors in equity funds which were 
advised by sales force personnel outperformed direct market investors 
by more than 20%.
---------------------------------------------------------------------------

    \14\ An updated DALBAR study for the period September 1993 
through June 1996, reached the same conclusion.
---------------------------------------------------------------------------

    The applicants represent that the Plans' Participants also fall 
prey to market volatility because they, as a group, are less 
sophisticated than individuals who invest on their own in mutual funds.
    15. The Program is designed to correct this tendency of ``buying 
high, selling low''. First, Worksheets will analyze investor behavior 
of each Participant and determine the appropriate Trust for investment. 
Since each Trust is a portfolio containing varying percentages of 
different asset classes represented by its investments in the Funds, 
this design accounts for the fact that investment performance of 
different asset classes is imperfectly correlated, and should buffer 
short-term fluctuations in the portfolio's overall value.
    16. The applicants request exemptive relief for the provision of 
investment advice to the Plans' Participants which may result in an 
investment by a Participant in a particular Trust.<SUP>15</SUP> In this 
regard, TCW generally receives higher net fees (and, potentially, 
higher net profits) if a Participant invests in the more aggressive 
Trusts. It is represented that the Program offers the following 
safeguards for the Plans and their Participants to address this 
potential conflict of interest. (a) An independent Financial Expert 
will construct, maintain and modify Asset Allocation Models of the 
Trusts. (b) A separate trust (Separate Trust) may be constructed by the 
Plan Fiduciary based on different weightings of the Funds. A Separate 
Trust may be utilized if the Financial Expert approves such 
modification. (c) The Financial Expert will develop, maintain, and if 
necessary, modify a basis for rebalancing each Trust. The rebalancing 
will maintain the prescribed asset allocation for each Trust also 
developed by the Financial Expert. Rebalancing will not involve any 
investment discretion by TCW or its affiliates. (d) The Funds are 
independently viable in the institutional market where the minimum 
investment is generally $250,000. (e) TCW will not receive any fees 
other than those charged by the Funds. However, TCW may receive 
reimbursement for direct expenses associated with operating the 
Program, including expenses it pays to third parties. (f) The Program 
only will be available to Plans which have a minimum of $5 million in 
plan assets. (g) TCW will provide a Plan Fiduciary with full written 
disclosure regarding the composition of the Trusts. Upon request, TCW 
will also provide the basis from which the asset allocations for each 
Trust were derived. The basis on which the Trusts' assets are 
rebalanced is developed, maintained, and if necessary, modified by the 
Financial Expert. TCW will fully disclose all amounts charged at the 
Fund levels by providing the Plan Fiduciaries with a copy of the Funds' 
prospectus. (h) TCW will also disclose to the Plan Fiduciary all the 
expenses charged to the Trusts prior to the Plan's investment in any of 
the Trusts. Such disclosures may be provided in a brochure, a contract 
executed by the Plan Fiduciary, or otherwise. (i) TCW will provide the 
Plan Fiduciary with a quantitative annual report which will enable the 
Plan Fiduciary to determine if the Program has attained its objectives. 
(j) Recommendation to a Participant will be based solely on that 
Participant's response in the Worksheets. TCW has no discretion to vary 
the recommendations which were based on the Participant's funding needs 
and behavioral profile as it relates to loss aversion. However, 
Participants may elect not to follow the recommendations rendered by 
TCW. (k) TCW will hire an independent Behavioral Expert to develop and 
formulate the risk profile. Such a risk profile will gauge whether a 
Participant will maintain the optimal Trust position if a large loss 
occurs. If the Participant is not likely to maintain the optimal 
position in the event of such a loss, a more conservative Trust will be 
recommended.
---------------------------------------------------------------------------

    \15\ The Department recently issued Interpretive Bulletin 96-1, 
29 CFR 2509.96-1 (the IB), which encourages and facilitates the 
provision of investment education to participants and beneficiaries. 
The IB describes information which will not constitute investment 
advice. Therefore, a person will not become a fiduciary by providing 
such information. However, the applicants represent that their 
assistance to Plan Participants pursuant to the Program may be 
considered to be investment advice.
---------------------------------------------------------------------------

    Prior to investing in a Trust, each Participant will receive full 
disclosure concerning the composition of the Trusts, and a description 
of the underlying Funds. Upon request, a Participant will also receive 
a copy of the Funds' prospectus.<SUP>16</SUP>
---------------------------------------------------------------------------

    \16\ See Footnote 4, supra.
---------------------------------------------------------------------------

    Subsequent to their participation in the Program, the Participants 
will be provided with written confirmations of the Participant's 
purchase and redemption transactions within 10 days of each such 
transaction. Also, quotations of the Participants' account balances 
will be available by telephone. Both the Participants and Plan 
Fiduciaries will receive a periodic newsletter describing the Trusts' 
performance during the preceding period, market conditions and economic 
outlook and, if applicable, prospective changes in the Asset Allocation 
Model and the reasons for change.
    17. Furthermore, the Program provides the following safeguards with 
respect to the purchase and sale of Units in the Trusts. (a) The Plan 
Fiduciaries have the discretion to select and retain the Program for 
their Plans. (b) The Plans pay no more or receive no less for a Unit in 
the Trusts than the Plans would have paid or received in an arm's-
length transaction with an unrelated party. (c) The Plans can redeem 
their Units in the Trusts on five business days (or less) notice. 
Redemption requests received in proper form prior to the close of 
trading on the NYSE will be affected at the net asset value per Unit 
determined on that day. Redemption requests received after the close of 
regular trading on the NYSE will be effected at the net asset value at 
the close of business of the next day, except on weekends or holidays 
when the NYSE is closed. (d) Except as provided below, the independent 
Plan Fiduciary will receive, at least 30 days advance notice of any 
material change in the information regarding the composition of the 
Trusts or the basis on which the Trusts' assets are rebalanced, and 
will receive at least 30 days advance notice of any material increase 
in expenses at the Trust level. The Financial Expert will have the sole 
responsibility for determining the materiality of any changes in the 
information regarding the composition of the Trusts or the basis on 
which the Trusts' assets are rebalanced. TCW will determine the 
materiality of any changes in expenses charged to the Trusts. For any 
immaterial changes in the information regarding the composition of the 
Trusts or the basis on which the Trusts' assets are

[[Page 41440]]

rebalanced, the independent Plan Fiduciary will be notified within 10 
days of such change. For any immaterial changes in the expenses charged 
to the Trusts, the independent Plan Fiduciary will be notified at least 
quarterly. Independent Plan Fiduciaries will be afforded, at all times, 
a reasonable opportunity to terminate their Plans' participation in the 
Program, as described in item (c) above. Under extraordinary 
circumstances outside the control of TCW, the independent Plan 
Fiduciary may not be provided advance notice by TCW of material changes 
regarding the composition of the Trusts or the basis on which the 
Trusts' assets are rebalanced. Under such circumstances, the Plan 
Fiduciaries will be notified within 10 days of any such change. The 
Financial Expert will determine whether the circumstance is 
extraordinary and if the change in the composition of the Trusts or in 
the basis for rebalancing is material. (e) The broker-dealers who 
effectuate and execute trades for the Funds, are engaged on a ``best 
execution'' <SUP>17</SUP> basis and are independent of TCW and its 
affiliates (Third Party Brokers). (f) The Plan pays no fee or 
commission by reason of the acquisition or redemption of Units in the 
Trusts.<SUP>18</SUP>
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    \ 17\ Best execution takes into account such factors as price 
(including the applicable dealer spread or commission, if any), size 
of the order, difficulty of execution and operating facilities of 
the firm involved. The applicants state that research, which will 
benefit all the shareholders in the Funds, including the Plans, may 
be provided by the Third Party Brokers.
    \18\ Pursuant to this condition, the applicants cannot pay or 
receive any sales fee or commission. However, this does not prevent 
third parties from paying or receiving fees or commissions.
---------------------------------------------------------------------------

    18. TCW will also offer the Program to Participants in the Plans 
sponsored by TCW. In this regard, TCW represents that the Plans 
sponsored by TCW will purchase or redeem Units in the Trusts which 
acquire Shares in the Funds.
    The applicants represent that the purchase or redemption of Units 
in the Trusts may be prohibited. Therefore, the applicants request 
relief for the purchase or redemption of Units in the Trusts by Plans 
sponsored by TCW. Such request for relief, however, does not extend to 
the selection, acquisition or sale of shares in the Funds by the Trusts 
since the applicant represents that such transactions are afforded 
relief by Prohibited Transaction Class Exemption 77-3, 42 FR 18734 
(April 8, 1977) (PTE 77-3).<SUP>19</SUP>
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    \19\ PTE 77-3 provides relief for the acquisition or sale of 
shares of a registered open-end investment company by an ``in-
house'' employee benefit plan, that is, a plan covering only 
employees of the mutual fund, the fund's investment adviser, or 
principal underwriter or an affiliate of such persons.
    The plan may not pay any investment management, investment 
advisory or similar fee to the fund adviser, underwriter or 
affiliate, except in the form of investment advisory fees paid by 
the fund under an investment advisory agreement. The plan also may 
not pay a sales commission in acquiring or selling the fund shares, 
and may only be charged a redemption fee under certain conditions. 
Any other dealings with the plan, must be on a basis no less 
favorable to the plan than such dealings with other fund 
shareholders. The Department expresses no opinion herein as to 
whether the conditions of PTE 77-3 will be met under the proposed 
transactions.
---------------------------------------------------------------------------

    In this connection, neither the applicants nor any person in which 
they have an interest will provide services to the Trusts other than 
for reimbursement of ``direct expenses'' within the meaning of 29 CFR 
2550.408c-2.
    19. The applicants represent that the combined total amounts 
received by TCW and its affiliates for services performed for the 
Trusts under the Program will constitute no more than reasonable 
compensation within the meaning of 29 CFR 2550.408b-2(d) and 2250.408c-
2. The only fees, other than direct expenses, that TCW will receive for 
such services are the fees charged by the Funds to all investors. There 
will be no separate fee at the Trust level for asset allocation 
services.
    The Plans' Fiduciaries will receive full disclosure of the services 
that will be provided by or for the Trusts, and of the Trusts' 
expenses. These expenses will include, but will not be limited to, 
expenses for the Financial and Behavioral Experts and the development 
of the analytical and risk tolerance components of the Worksheets, 
expenses for printing and mailing reports, expenses for publishing a 
quarterly newsletter, expenses for computer programmers, and any other 
expense incurred by each Trust in the ordinary course of business. 
<SUP>20</SUP>
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    \20\ The Department expresses no opinion as to whether the 
requirements of 29 CFR sections 2550.408b-2 and 2550.408c-2 would be 
met with respect to the reimbursement of TCW for the provision of 
the above-described services. The Department notes, however, that an 
expense would not be properly reimbursable to the extent it was 
incurred in connection with a service that was not otherwise exempt 
under sections 408(b)(2) and 408(c) of the Act and corresponding 
regulations. Thus, TCW must review each service to be provided to 
the Trust to determine whether such service is a ``necessary 
service'' for which reimbursement is lawful. See Department of Labor 
Advisory Opinion No. 93-06A, March 11, 1993.
---------------------------------------------------------------------------

    TCW represents that the combined total amount payable by a Trust 
for services necessary to operate the Program and for TCW to provide 
what may be considered investment advice, will not exceed 1% of the 
Trusts' net asset value per annum, calculated on the average daily 
value of a Plan's investment in the Trust. Additional services, which 
are not necessary for the operation of the Program (e.g., recordkeeping 
of amounts or units in the participants' individual accounts, 
preparation of account statements for participants, review of whether a 
Plan complies with section 404(c) of the Act) may be provided. However, 
these expenses will not be considered in determining whether the 1% 
limit is exceeded. Except for these additional services, all services 
provided will be necessary to operate the Program (i.e., the Program 
Services). All the Trusts will share the cost of the Program Services 
on a pro-rata basis, based on the amount of assets in each Trust. For 
example, a Trust with $10 million in assets will pay twice as much for 
Program Services as a Trust with $5 million in assets. Fees at the Fund 
level are separately determined and are not affected by the fees paid 
at the Trust level.
    20. TCW will generally pay for direct expenses for services 
performed for the Trusts and seek reimbursement from the Plans. The 
applicants state that this could be a prohibited extension of credit 
between a plan and a party-in-interest pursuant to sections 
406(a)(1)(B), 406(a)(1)(D) and 406(b)(2) of the Act. However, the 
applicants represent that these transactions are covered under 
Prohibited Transaction Class Exemption 80-26, 45 FR 28545 (April 29, 
1980) (PTE 80-26) <SUP>21</SUP>. The applicants also represent that 
they will fully comply with the applicable conditions of PTE 80-26 when 
they pay such expenses on behalf of the Plans.
---------------------------------------------------------------------------

    \21\ PTE 80-26 permits a party in interest to make interest free 
loans to a plan. The proceeds of the loan may be used only for (1) 
the payment of ordinary operating expenses of the plan, including 
the payment of benefits, in accordance with the terms of the plan, 
and periodic premiums under an insurance or annuity contract; or (2) 
a three day period, for a purpose incidental to the ordinary 
operation of the plan. In addition, the loan must be unsecured and 
not made by an employee benefit plan. The Department expresses no 
opinion as to the applicability of PTE 80-26 or whether the 
conditions of that exemption would be satisfied by the proposed 
transactions.
---------------------------------------------------------------------------

    21. In summary, the applicant represents that the transactions 
satisfy the statutory criteria for an exemption under section 408(a) of 
the Act because:
    A. The decision to participate in the Program will be made by a 
Plan Fiduciary of a Plan which has a minimum of $5,000,000 in plan 
assets;
    B. Prior to making the decision to participate in the Program, the 
Plan Fiduciary will receive offering materials and disclosures 
concerning the Program's purpose, fees, structure, operation, and 
risks;

[[Page 41441]]

    C. The Plan Fiduciary will receive an annual report which will 
enable him to monitor the Program's effectiveness;
    D. The Asset Allocation Models of the Trusts and the rebalancing 
formula will be constructed by an independent Financial Expert;
    E. A risk profile for each Participant will be formulated by an 
independent Behavioral Expert;
    F. Investment recommendations made by TCW to the Participants will 
be based solely on their responses to the Worksheets (and data which 
may be supplied by the Plan or the Plan Fiduciary), and the independent 
Experts are responsible for formulating the questions for the 
Worksheets;
    G. TCW will maintain a record of the recommendations made to the 
Participants, including the investment decisions made by the 
Participants;
    H. Except for reimbursement of expenses for services provided to 
the Trusts, TCW will not receive any fees from the operation of the 
Program other than those attributable to the Funds;
    I. (1) Prior to investing in a Trust, each Participant will receive 
full disclosures which will include, but will not be limited to:
    (a) Disclosure regarding composition of the Trusts, and a 
description of the underlying Funds;
    (b) Upon request, a Participant will also receive a copy of the 
Funds' prospectus;
    (c) The Participant can meet with a facilitator familiar with the 
Program, or contact such a facilitator using a toll-free number.
    (2) Subsequent to his participation in the Program, each 
Participant will receive the following disclosures which will include, 
but will not be limited to:
    (a) Written confirmations of purchase and redemption transactions 
for each Participant within 10 days of each such transaction;
    (b) Telephone access to the quotations of the Participant's account 
balance; and
    (c) A periodic newsletter describing the Trusts' performance during 
the preceding period, market conditions and economic outlook and, if 
applicable, prospective changes in the asset allocation model and the 
reasons for the change; and
    J. The Plans can redeem their Units in the Trusts on five business 
days (or less) notice.

Notice to Interested Persons

    The applicant represents that because potentially interested 
participants and beneficiaries cannot be identified at this time, the 
only practical means of notifying such participants and beneficiaries 
of this proposed exemption is by publication in the Federal Register. 
Therefore, 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.
    However, because the applicants have requested an effective date of 
the publication of the notice of proposed exemption in the Federal 
Register, the applicants represent that if a Plan invests in the 
Program within thirty (30) days of the publication of the proposed 
exemption in the Federal Register, the Plan Fiduciary of that Plan will 
be given a copy of the notice of proposed exemption as published in the 
Federal Register and a statement advising interested persons of their 
right to comment and request a hearing on the proposed exemption. 
Accordingly, that Plan Fiduciary and all interested persons will be 
entitled to comment or request a hearing on the proposed exemption 
within thirty (30) days of the Plan Fiduciary's receipt of the above 
materials.

FOR FURTHER INFORMATION CONTACT: Ekaterina A. Uzlyan, U.S. Department 
of Labor, telephone (202) 219-8883. (This is not a toll-free number.)

Pension and Welfare Benefits Administration, Notice of Proposed 
Exemption for Certain Transactions Involving the UNUM Life Insurance 
Company of America (UNUM), Located in Portland, Maine

[Application No. D-10437]

AGENCY: Department of Labor.

ACTION: Notice of proposed exemption.

-----------------------------------------------------------------------

SUMMARY: This document contains a notice of pendency before the 
Department of Labor (the Department) of a proposed exemption from 
certain of the prohibited transaction restrictions of the Employee 
Retirement Income Security Act of 1974 (the Act) and the Internal 
Revenue Code of 1986 (the Code). The proposed exemption would exempt 
certain transactions that may occur as a result of the sharing of real 
estate investments among various Accounts maintained by UNUM, including 
the UNUM general account and the general accounts of UNUM's affiliates 
which are licensed to do business in at least one state (collectively, 
the General Account), and one or more separate accounts or investment 
advisory accounts in which one or more employee benefit plans sponsored 
by UNUM or its affiliates participate, or any combination thereof (the 
ERISA-Covered Accounts) with respect to which UNUM is a fiduciary. As 
an acknowledged investment manager and fiduciary, UNUM is primarily 
responsible for the acquisition, management and disposition of the 
assets allocated to the ERISA-Covered Accounts.

DATES: Written comments and requests for a public hearing must be 
received by the Department on or before September 30, 1997.

ADDRESSES: All written comments and requests for a hearing (at least 
three copies) should be sent of the Office of Exemption Determinations, 
Pension and Welfare Benefits Administration, Room N-5649, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210, Attention: Application No. D-10437. The application 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.

SUPPLEMENTARY INFORMATION: Notice is hereby given of the pendency 
before the Department of an application for exemption from the 
restrictions of sections 406(a), 406(b)(1) and 406(b)(2) of the Act and 
from 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. 
The proposed exemption was requested in an application filed by UNUM 
pursuant to 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, 32847, August 10, 1990).

Summary of Facts and Representations

    1. UNUM is a stock life insurance company organized under the laws 
of the State of Maine and subject to supervision and examination by the 
Insurance Commissioner of Maine. Among the variety of insurance 
products and services it offers, UNUM has long provided funding, 
deposit administration, asset management and other services for pension 
and profit sharing plans subject to the provisions of Title I of the 
Act. UNUM has substantial experience in managing real estate 
investments. Of the approximately $11.8 billion in total assets held by 
UNUM and its affiliates at the close of 1995, General Account assets 
included more than $261 million in equity interests in real property 
and more than $1.2 billion in mortgage loans.
    UNUM is owned by a parent holding company, UNUM Corporation, a 
Delaware corporation, which is publicly

[[Page 41442]]

held and files reports with the Securities and Exchange Commission 
under the Securities Exchange Act of 1934.
    UNUM Corporation maintains the UNUM Employees Lifecycle Plan (the 
UNUM Plan), which is a defined benefit pension plan on behalf of its 
employees and those of certain of its subsidiaries. The UNUM Plan 
presently has 7,507 participants and holds more than $218 million in 
assets. Those assets are managed by UNUM under an Investment Management 
Agreement. The UNUM Plan comprises an ERISA-Covered Account which may 
share real estate investments under the exemption proposed herein. The 
applicant represents that currently the UNUM Plan would be the only 
employee benefit plan participating in an ERISA-Covered Account, but 
UNUM would like to have the flexibility to share real estate 
investments with additional separate accounts or investment advisory 
accounts in which other employee benefit plans maintained by UNUM or 
its affiliates participate. Accordingly, UNUM has requested that the 
exemption proposed herein extend to such other potential ERISA-Covered 
Accounts as well. The proposed exemption would apply to real estate 
investments shared by two or more ERISA-Covered Accounts, and would 
also apply to real estate investments shared by one or more ERISA-
Covered Accounts and the General Account. The only employee benefit 
plans which will participate in the ERISA-Covered Accounts are plans 
maintained by UNUM and its affiliates.
    2. The applicant represents that because there are relatively few 
potential investors for large scale investments such as office 
buildings, shopping centers, and industrial parks, the owner or 
developer of such real estate investments must offer a higher return in 
order to attract investors. In many cases, UNUM's real estate accounts 
would be precluded from acquiring these investments on an individual 
basis because such investments would require the commitment of a 
disproportionately large percentage of account assets to one or a few 
investments. The sharing of large or uniquely desirable real estate 
investments would permit the ERISA-Covered Accounts to participate in 
more attractive and profitable real estate investments while 
maintaining portfolio diversification.
    3. The real estate investments which UNUM proposes to share may 
either take the form of a direct investment in real property or an 
interest in a joint venture partnership which holds title to, manages, 
and/or develops real property. No ERISA-Covered Account will 
participate in an investment for the purpose of enabling another 
Account to make an investment.
    4. Real estate equity investment opportunities for the Accounts are 
originated by the Real Estate Equity Group (REEG), a department within 
UNUM's Investment Department (the Investment Division). Real estate 
equity investments are originated in accordance with general investment 
criteria developed by REEG and the senior management of the Investment 
Division. The specific investment criteria for each account must be 
approved by the board of directors of each affiliated insurance company 
participating in real estate investments and updated no less frequently 
than annually. With respect to the UNUM Plan (or any other ERISA-
Covered Account), the investment strategy would be developed and 
reviewed periodically in consultation with the Plan trustees and the 
independent fiduciary (see below).
    5. The strategy approved to date by the trustees of the UNUM Plan 
(the Trustees) <SUP>22</SUP> would limit its aggregate participations 
in real estate investments to 10% of Plan assets, with no more than 
1.5% of Plan assets in any one property. The average amount invested in 
each property by the Plan is expected to be approximately $2.5 million. 
No leverage would be employed, i.e., no property would be debt 
financed. There would eventually be ten or twelve properties in the 
Plan's real estate portfolio, diversified among at least five cities or 
regions which are geographically dispersed. No more than 30% of the 
Plan's portfolio would be invested in any one city or region.
---------------------------------------------------------------------------

    \22\ The Trustees comprise senior actuarial, financial, human 
resources and operating officers of UNUM, its parent holding company 
and its affiliates.
---------------------------------------------------------------------------

    5. Allocations of investment opportunities among Accounts are based 
upon, among other things, the extent to which each Account's projected 
acquisition needs and investment objectives, established no less 
frequently than annually as part of the criteria for investment of the 
Account, have not been satisfied by other allocations. Under the 
exemption proposed herein, real estate investments meeting an Account's 
investment criteria could be shared by that Account and one or more 
other Accounts for which a share in the investment meets the criteria 
of such other Account(s) necessary to achieve economic, geographical 
and property class diversification within the limits on investment 
amounts imposed by the overall size and other holdings of the Account.
    6. During the course of UNUM's holding of a real estate investment, 
certain situations may arise which require a decision to be made with 
regard to the management or disposition of the investment. For example, 
there may be a need for additional contributions of operating capital, 
or there may be an offer to purchase the investment by a third party or 
a joint venture partner. When UNUM shares these investments among more 
than one Account, a potential for conflict arises since the same 
decision may not be in the best interest of each Account. Therefore, 
the applicant has submitted a request for exemption, with certain 
proposed safeguards designed to protect the interests of any 
participating ERISA-Covered Account in the resolution of potential or 
actual conflicts. Among the safeguards will be the appointment for each 
participating ERISA-Covered Account of a fiduciary independent of UNUM 
and its affiliates.
    7. The independent fiduciary of any ERISA-Covered Account that 
proposes to share real estate investments will be furnished with a 
written description of the transactions that may occur involving such 
investments which might raise questions under the conflict of interest 
prohibitions of the Act with respect to UNUM's involvement in such 
transactions and which are the subject of this proposed exemption. This 
description must discuss the reasons why such conflicts of interest may 
be present (i.e., because the General Account participates in the 
investment and may benefit from the transaction or because the 
interests of the various Accounts participating in the investment may 
be adverse with respect to each other). The description must also 
disclose the principles and procedures to be used to resolve any 
anticipated impasses, as will be outlined below. In addition, the 
independent fiduciary of any new ERISA-Covered Account that proposes to 
share investments following the issuance of a final exemption will be 
provided with the above-described written description and a copy of the 
exemption as granted, before beginning to participate in any shared 
investments.
    8. The Trustees can request a change in the investment Policies and 
Objectives governing investment of its assets under the Investment 
Management Agreement which would preclude further shared real estate 
investments, and which could call for

[[Page 41443]]

divestiture of existing participations in such investments on its 
behalf. Any other plan would be able to withdraw from an ERISA-Covered 
Account by providing notice to UNUM in accordance with the relevant 
contractual provisions.
    9. The UNUM Plan, and any other ERISA-Covered Account, will only 
participate in the shared real estate equity investments with the 
approval of a fiduciary which is entirely independent of UNUM and its 
affiliates.
    The independent fiduciary will be chosen by the Trustees, who will 
have reviewed information about the nominee's qualifications, and had 
an opportunity to meet with and question the nominee or its 
representatives prior to confirming the appointment. The nominee may be 
a firm, or a committee of individuals, possessing the necessary 
qualifications as outlined below.
    10. UNUM will not have the authority to remove an independent 
fiduciary or a member of an independent fiduciary committee, except for 
cause. The term ``for cause'' means that there must be sufficient and 
reasonable grounds for removal and the reasons for removal must be 
related to the ability and fitness of an individual to perform his or 
her required duties under the proposed exemption. The definition of the 
term ``for cause'' must be clearly stated in specific terms in the 
contract by which the independent fiduciary is retained. If the 
organization acting as independent fiduciary is removed for cause by 
the Trustees, the procedure described above for the initial selection 
of an independent fiduciary shall apply to the replacement.
    In the case of an individual member of a committee serving as an 
independent fiduciary, the committee member may also be removed for 
cause at any time upon the majority vote of the remaining members of 
the committee. If a vacancy occurs by virtue of the death, resignation 
or removal of a member of an independent fiduciary committee, 
replacement members of the committee will be appointed by a majority 
vote of remaining members of the committee. Possible replacements may 
be suggested by members of the committee, UNUM, the Trustees, or the 
appropriate fiduciary of any other participating plan. If an 
independent fiduciary is to be replaced, written records regarding the 
reason for such replacement as well as a description of the replacement 
independent fiduciary must be maintained by UNUM or its affiliate, and 
such records must be made available to the Department upon request. If 
the independent fiduciary is removed for cause, UNUM will explain the 
circumstances in writing to the Department.
    11. Prior to the decision to approve the selection of an 
independent fiduciary initially selected by UNUM, the Trustees or other 
appropriate fiduciary on behalf of any other plan participating in 
shared real estate investments will be furnished with appropriate 
biographical information pertaining to the organization or committee 
members. This biography will set forth the background and 
qualifications of the organization or committee member to serve in the 
capacity of independent fiduciary. The information provided to the 
Trustees or other plan fiduciaries will include the total amount of 
compensation received by the organization (or committee member) from 
UNUM and its affiliates during the preceding year. This financial 
disclosure will be updated annually, and will include the amount of 
fees and expenses paid for independent fiduciary services.
    12. To ensure that the organizations or committee members so 
selected are knowledgeable and qualified to serve as independent 
fiduciaries and are, in fact independent of UNUM, the following 
qualifications and restrictions will be met. The independent fiduciary 
must be unrelated to UNUM and its affiliates. The independent fiduciary 
may not be, or consist of, any officer, director or employee of UNUM, 
or be affiliated in any way with UNUM or any of its affiliates. (See 
definition of ``affiliate'' in Section V(a), below.) The independent 
fiduciary must be either (1) a business organization which has (or 
whose principals have) at least five years of experience with respect 
to commercial real estate investments, or (2) a committee composed of 
three to five individuals who each have at least five years of 
experience with respect to commercial real estate investments. The 
contract with the independent fiduciary must provide for a minimum 
initial term of not less than five (5) years.
    No organization or committee member will be eligible to serve as an 
independent fiduciary for an ERISA-Covered Account for any taxable year 
if the gross income (excluding retirement income) received by such 
organization or individual (or any partnership or corporation of which 
such organization or individual is an officer, director, or ten percent 
or more partner or shareholder) from UNUM and its affiliates for that 
taxable year exceeds five percent of its or his annual gross income 
from all sources for the prior fiscal year. If such organization or 
individual had no income for the prior fiscal year, the five percent 
limitation shall be applied with reference to the fiscal year in which 
such organization or individual serves as an independent fiduciary. In 
addition, no organization or individual who is an independent 
fiduciary, and no partnership or corporation of which such organization 
or individual is an officer, director or ten percent or more partner or 
shareholder, may (i) acquire any property from, sell any property to, 
or borrow any funds from, UNUM or its affiliates, during the period 
that such organization or individual serves as an independent fiduciary 
and a period of six months after such organization or individual ceases 
to be an independent fiduciary, or (ii) negotiate any such transaction 
during the period that such organization or individual serves as 
independent fiduciary.
    A business organization or committee member may not serve as an 
independent fiduciary of more than one ERISA-Covered Account.
    13. The independent fiduciary will be compensated by the UNUM Plan 
or any other ERISA-Covered Account for which it acts as independent 
fiduciary. UNUM may indemnify any independent fiduciary or members of 
an independent fiduciary committee with respect to any action or 
threatened action to which such person is made a party by reason of his 
or her service as an independent fiduciary. Indemnification will be 
provided as permitted under the laws of the State of Maine and subject 
to the requirement that such person acted in good faith and in a manner 
he or she reasonably believed to be solely in the interests of the 
participants and beneficiaries of the plans participating in the 
Account.
    14. The independent fiduciary of each ERISA-Covered Account will 
have the responsibility and authority to approve or reject 
recommendations made by UNUM for any transaction described in this 
notice of proposed exemption. The committee members and/or organization 
acting as independent fiduciary will be informed of the procedures set 
forth in the requested exemption for the resolution of anticipated 
impasses prior to his or its acceptance of the appointment. UNUM will 
involve the independent fiduciary in the consideration of contemplated 
transactions prior to the making of any decisions, and will provide the 
independent fiduciary with whatever information may be necessary in 
making its determinations. No transaction which is the subject of this 
proposed exemption will be undertaken prior to the rendering of an 
informed decision by the independent fiduciary. In addition, the 
independent fiduciary will

[[Page 41444]]

approve the initial allocation of a shared investment to an ERISA-
Covered Account. In the case of transactions that involve the possible 
transfer of an interest in a real estate investment between the General 
Account and an ERISA-Covered Account, the independent fiduciary will 
not be limited to approving or rejecting the recommendations of UNUM, 
but will have full authority to negotiate the terms of the transfer (in 
accordance with the independent appraisal procedure described below) on 
behalf of the ERISA-Covered Account. The independent fiduciary of each 
ERISA-Covered Account will also review on an as-needed basis, but not 
less than twice annually, the entire portfolio of shared real estate 
investments in the ERISA-Covered Account to determine whether it is in 
the best interests of the ERISA-Covered Account to retain or sell such 
investments.
    15. The independent fiduciary will prepare written records of its 
decisions and the reasons underlying those decisions, which may take 
the form of committee meeting minutes or letters to UNUM. UNUM will 
maintain these and all other written records required to be maintained 
by the Department and will make them available for inspection by 
authorized employees of the Department and the Internal Revenue 
Service, as well as the fiduciaries, contributing employers, and 
participants and beneficiaries of the plans participating in the 
proposed transactions.
    16. In connection with the management of real estate shared 
investments, it is possible that UNUM, on behalf of the General 
Account, or the independent fiduciaries for ERISA-Covered Accounts 
participating in a shared investment, may develop different approaches 
as to whether or how long an investment should be held by an Account. 
Certain situations may also arise during the course of UNUM's holding 
of a shared real estate investment in which decisions will need to be 
made where it is not possible to obtain the agreement of UNUM and all 
of the independent fiduciaries involved. These situations may arise as 
a result of an action taken by a third party, or they may arise in 
connection with an action proposed by UNUM or the independent fiduciary 
for an ERISA-Covered Account. In such cases, UNUM will make 
recommendations to the independent fiduciaries regarding a proposed 
transaction. If a course of action cannot be found that is acceptable 
to each independent fiduciary, a stalemate procedure will be followed 
to ensure that a decision can be made. The applicant represents that 
the stalemate procedure is similar to procedures typically used to 
resolve disputes between co-venturers under real estate joint venture 
agreements and is therefore familiar to most real estate investors.
    17. With respect to stalemates between two or more Accounts which 
share an investment, the stalemate procedure is designed to provide a 
result that is similar to what would occur in comparable situations 
where unrelated parties to a transaction were dealing at arm's length. 
This means that the action which will be taken in such cases is the one 
that does not require an Account: (1) to invest new money; (2) to 
change the terms of an existing agreement; or (3) to change the 
existing relationship between the Accounts. Joint venture agreements 
typically provide the opportunity for a co-venturer to buy out the 
interest of another co-venturer if they reach an impasse. If, for 
example, a third party wishes to buy out a joint venturer's interest in 
a property and the co-venturers disagree on whether to accept or reject 
the buy-out offer, the real estate joint venture agreement will 
typically allow one co-venturer to buy out the other at a specified 
price.
    18. Where investments are shared by two or more ERISA-Covered 
Accounts, UNUM will make recommendations to the independent fiduciaries 
of each participating ERISA-Covered Account regarding investment 
management decisions that must be made for a real estate shared 
investment. For example, if the independent fiduciaries cannot agree on 
a UNUM recommendation, UNUM may offer alternate recommendations 
(possibly including partition and sale of undivided interests) in an 
attempt to facilitate agreement. If the independent fiduciaries still 
cannot agree, each ERISA-Covered Account will be offered the 
opportunity to buy out the other ERISA-Covered Account's interest on 
the basis of a specified price. The specified price may be based on the 
price offered by a third party, or, if no third party offer is received 
(or if the third party offer is unacceptable to either ERISA-Covered 
Account), the specified price will be the price established under the 
independent appraisal procedure described below. As in a buy-sell 
provision in a typical joint venture, the ERISA-Covered Account to 
which the offer is made will have the option to sell to the offering 
ERISA-Covered Account at the specified price, or to buy out the 
offering ERISA-Covered Account's interest at that price.
    19. If the independent fiduciary for the ERISA-Covered Account 
which disagrees with UNUM's recommendation does not wish to make a buy-
sell offer to the other ERISA-Covered Account, the other ERISA-Covered 
Account(s) may do so. If no ERISA-Covered Account chooses to exercise 
the buy-sell option, UNUM will take the action designed to preserve the 
status quo, i.e., the action designed to avoid expenditure of 
additional funds by the Accounts and avoid any change in existing 
arrangements or contractual relationships.
    20. Where a real estate investment is shared by the General Account 
and one or more ERISA-Covered Accounts and a stalemate occurs between 
the General Account and an ERISA-Covered Account, UNUM may offer 
alternate recommendations to facilitate an agreement. If the Accounts 
still cannot reach agreement, each Account will be offered the 
opportunity to buy out the other Account's interest on the basis of a 
specified price, which will be established in accordance with the 
independent appraisal procedure described below, or will be the price 
offered by a third party. If none of the Accounts elects to make a buy-
sell offer to the other Account, UNUM would be required to take the 
action selected by the independent fiduciary of the ERISA-Covered 
Account. Where the General Account wishes, e.g., to hold its interest 
and the independent fiduciary for the ERISA-Covered Account determines 
to sell its interest, the General Account will buy out the interest of 
the ERISA-Covered Account at the price offered by the third party, or, 
at the ERISA-Covered Account's option, at an independently determined 
price. Conversely, where the independent fiduciary for the ERISA-
Covered Account determines to retain its interest while the General 
Account wants to sell its interest, the ERISA-Covered Account has the 
option of buying out the General Account, or, if the independent 
fiduciary chooses not to, the status quo will be maintained.

Specific Transactions

I. Direct Real Estate Investments

(a) Transfers Between Accounts
    21. Following the initial sharing of investments, it may be in the 
best interests of the Accounts participating in the investment for one 
Account to sell its interest to the other(s). Such a situation may 
arise, for example, when one Account experiences a need for liquidity 
in order to satisfy the cash needs of the plans participating in the 
Account, while for the other Account(s) the investment remains 
appropriate. One possible means of reconciling this situation is for 
the ``selling'' Account to

[[Page 41445]]

sell its interest in the shared investment to the remaining 
participating Account(s) or to another Account(s) at current fair 
market value. Such sales may not, however, be appropriate in all 
circumstances. An inter-Account transfer will only be permitted when it 
is determined to be in the best interests of each Account that would be 
involved in the transaction. The transfer would also be subject to the 
approval of the Insurance Departments of a number of states where UNUM 
is domiciled, including Maine, South Carolina and New York. Because 
UNUM would be acting on behalf of both the ``buying'' and ``selling'' 
Accounts (but not the General Account) in such an inter-Account 
transfer, the transfer might be deemed to constitute a prohibited 
transaction under section 406(b)(2) of the Act. Accordingly, exemptive 
relief is requested herein for the sale or transfer of an interest in a 
shared real estate investment by one ERISA-Covered Account to another 
Account of which UNUM is a fiduciary. Such transfers would have to be 
at fair market value and approved by the independent fiduciary for each 
ERISA-Covered Account involved in the transfer.
    Ordinarily, no transfer of an interest in a shared investment will 
be permitted between the General Account and an ERISA-Covered Account. 
The transfer of an interest in a shared investment between the General 
Account and an ERISA-Covered Account may be deemed to constitute a 
violation of sections 406(a)(1) (A) and (D) as well as sections 406(b) 
(1) and (2) of ERISA. As noted above, however, where a stalemate arises 
between the General Account and an ERISA-Covered Account, the transfer 
of such an interest would be permitted to resolve the conflict. 
Specific stalemate procedures have been developed for these situations. 
If, for example, a third party makes an offer to purchase the entire 
investment held by UNUM on behalf of the General Account and an ERISA-
Covered Account, it is possible that the General Account would like to 
accept the offer and the independent fiduciary on behalf of the ERISA-
Covered Account would like to reject the offer. In that event, UNUM may 
offer alternative recommendations to the independent fiduciary. If 
there is still no agreement, the independent fiduciary (as the party 
wishing to reject the offer) would be given the opportunity to buy-out 
the General Account's interest at a specified price. This price may be 
a proportionate share of the third party offer; or, if such price is 
unacceptable to the ERISA-Covered Account, a proportionate share of the 
price determined through the independent appraisal procedure described 
below. This procedure would give the ERISA-Covered Account an 
opportunity to retain its interest in the shared investment. If the 
ERISA-Covered Account does not choose to buy-out the General Account's 
interest, the General Account would be required to accede to the 
direction of the ERISA-Covered Account and would, therefore, reject the 
third party offer.
    If, in the event of a third party purchase offer, the General 
Account wants to reject the offer but the independent fiduciary on 
behalf of the ERISA-Covered Account wants to accept the offer, the 
procedures described above would apply, except that the General Account 
(as the party wishing to reject the offer) would have the opportunity 
to buy-out the ERISA-Covered Account's interest at a proportionate 
share of the third party purchase offer, or, at the option of the 
independent fiduciary for the ERISA-Covered Account, at an 
independently determined price. This will permit the ERISA-Covered 
Account to sell its interest in a real estate investment, if it chooses 
to do so, at no less than the same price it would have received from a 
third party.
    Even in the absence of a third party offer, UNUM may recommend the 
sale of a shared investment. If the independent fiduciary approves the 
recommendation, UNUM will arrange for the sale. If the independent 
fiduciary does not approve UNUM's recommendation, UNUM may offer 
alternative recommendations, possibly including partition and sale of 
divided interests. If, however, no agreement is reached, the 
independent fiduciary (as the party wishing to reject the 
recommendation) would be given the opportunity to buy-out the General 
Account's interest in accordance with the independent appraisal 
procedure described below. If there is no buy-out, UNUM would take the 
course of action consistent with the ERISA-Covered Account's 
determination and would, therefore, not sell the investment.
    The independent fiduciary may also determine independently that a 
shared investment in an ERISA-Covered Account should be sold. If UNUM 
agrees with this recommendation, UNUM will arrange the sale. If UNUM, 
on behalf of the General Account, disagrees with the recommendation, 
UNUM will first attempt to sell the ERISA-Covered Account's interest to 
another Account other than the General Account. In this case, the sale 
price and other terms would have to be approved by the independent 
fiduciary for each ERISA-Covered Account. If the ERISA-Covered 
Account's interest cannot be sold to another Account, UNUM may offer 
alternative recommendations, possibly including partition and sale of 
the ERISA-Covered Account's interest to a third party. If no agreement 
is reached with respect to these options, the General Account (as the 
party opposed to the sale) would have the opportunity of buying out the 
ERISA-Covered Account's interest at a price established under 
independent appraisal procedures described below. If there is no buy-
out and no agreement, UNUM will be required to take the course of 
action consistent with the ERISA-Covered Account's determination and 
will sell the entire investment.
    Where an independent price for the transfer of an interest in a 
shared investment between the General Account and an ERISA-Covered 
Account is not established by an offer from an unrelated third party 
(or where the third party price is unacceptable to the ERISA-Covered 
Account), the stalemate procedure provides for the appointment of an 
independent appraiser. Under this procedure, UNUM and the independent 
fiduciary will each appoint an independent appraiser. These two 
appraisers will then choose a third appraiser. The panel of appraisers 
will each evaluate the entire investment, and the average of the three 
appraisals will be used to determine the proportional value of each 
shared investment interest. However, the General Account and the ERISA-
Covered Account may agree that if one valuation is more than a 
specified percentage outside the range of the other two valuations, 
that valuation may be disregarded and the transfer price will be the 
average of the remaining two valuations. The applicant represents that 
this procedure, which is of the variety typically used in real estate 
joint venture agreements, provides adequate protection for the ERISA-
Covered Account because the independent fiduciary is an equal 
participant in the appraisal process. See Section I(a).
(b) Joint Sales of Property
    22. In situations involving shared real estate investments, an 
opportunity may arise to sell the entire investment to a third party, 
and it may be determined for all of the participating Accounts that the 
sale is desirable. When the General Account is participating in the 
investment, and the sale is therefore determined to be in the best 
interests of the General Account (in addition to being in the interests 
of the other Account(s)), the sale might be deemed

[[Page 41446]]

to constitute a prohibited transaction under section 406 of the Act and 
section 4975 of the Code.<SUP>23</SUP>
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    \23\ The Department notes that all future references to the 
provisions of the Act shall be deemed to include the parallel 
provisions of the Code.
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    Similarly, UNUM may be acting on behalf of two ERISA-Covered 
Accounts, in which case a prohibited transaction under section 
406(b)(2) may be deemed to occur. Accordingly, exemptive relief is 
requested for these joint sales. The sales would have to be approved by 
the independent fiduciary for each ERISA-Covered Account involved in 
the sale. In accordance with UNUM's stalemate procedures, if the 
independent fiduciary for one ERISA-Covered Account wishes to sell its 
interest in a shared investment and the independent fiduciary for 
another ERISA-Covered Account does not want to sell, UNUM will attempt 
to negotiate a compromise, including the transfer of interests from one 
Account to the other. If no agreement can be reached, the status quo 
will be maintained and no sale will be made. See Section I(b).
(c) Additional Capital Contributions
    23. On occasion, commercial real estate investments require 
infusions of additional capital in order to fulfill the investment 
expectations of the property. For example, developmental real estate 
investments sometimes require additional capital in order to complete 
the construction of the property. In addition, the cash flow needed to 
improve or operate completed buildings may also result in the need for 
additional capital. Such additional capital is frequently provided by 
the owners of the property. In the case of a property that is owned 
entirely by UNUM on behalf of the Accounts, it is contemplated that 
needed additional capital will ordinarily be contributed in connection 
with the investment in the form of an equity capital contribution made 
by each participating Account in an amount equal to such Account's 
existing percentage equity interest in the shared investment 
<SUP>24</SUP>; that is, in the first instance, each Account would be 
afforded the opportunity to contribute additional capital on a fully 
proportionate basis. In the case of ERISA-Covered Accounts, all 
decisions regarding the making of additional capital contributions must 
be approved by the independent fiduciary for the Account. The making of 
an additional capital contribution could be deemed to involve a 
prohibited transaction under section 406 of the Act. If one or more 
participating Accounts in a shared investment is unable to provide its 
share of the needed additional capital, various alternatives may be 
appropriate, including having the other Account(s) make a 
disproportionate contribution. For example, where the General Account 
and an ERISA-Covered Account participate in a shared investment and the 
need for additional capital arises, it might be determined for 
liquidity reasons or other factors involving the ERISA-Covered Account 
that the additional contribution should not be made by that Account. As 
a result, the additional equity capital may be provided entirely by the 
General Account with the further consequence that the General Account 
would thereafter have a larger interest in the investment and, 
therefore, a larger share in the appreciation and income to be derived 
from the property.<SUP>25</SUP>
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    \24\ In any case where the General Account participates in a 
shared investment with one or more ERISA-Covered Accounts and a call 
for additional capital is made, the General Account will always make 
a capital contribution that is at least equivalent proportionately 
to the highest capital contribution made by an ERISA-Covered 
Account.
    \25\ In the case of shared real estate investments owned 
entirely by UNUM accounts, if an Account contributes capital 
equaling less than its pro rata interest in the investment (or makes 
no contribution at all), that Account's equity interest will be re-
adjusted and reduced based on the change in the fair market value of 
the property caused by the infusion of new capital.
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    Such an adjustment in ownership interests might be deemed to 
constitute a prohibited (indirect sales) transaction under section 406 
of the Act. In addition, these situations could also occur where two 
ERISA-Covered Accounts are involved.
    Accordingly, the applicant is requesting exemptive relief that 
would permit the contribution of additional equity capital for a shared 
investment by Accounts participating in the investment (including the 
General Account). Any decision made or action taken by an ERISA-Covered 
Account (i.e., the contribution of either no additional capital, the 
Account's pro rata share of additional capital, less than or more than 
the Account's pro rata share, etc.) must be approved by such 
independent fiduciary. See Section I(c).
(d) Lending of Funds to Meet Additional Capital Requirements
    24. If the General Account and an ERISA-Covered Account participate 
in a shared investment that experiences the need for additional 
capital, and it is determined that the ERISA-Covered Account does not 
have sufficient funds available to meet the call for additional 
capital, the General Account might be willing and able to loan the 
required funds to the ERISA-Covered Account.
    Prior to any loan being made, it must be approved by the 
independent fiduciary for the ERISA-Covered Account. Such loan will be 
unsecured and non-recourse, will bear interest at a rate that will not 
exceed the prevailing interest rate on 90-day Treasury Bills, will not 
be callable at any time by the General Account, and will be prepayable 
at any time without penalty at the discretion of the independent 
fiduciary of the ERISA-Covered Account. Prior to any loan being made, 
it would have to be approved by the independent fiduciary for the 
ERISA-Covered Account. See Section I(d).

II. Joint Venture Investments

    25. Many real estate investments are structured as joint venture 
arrangements (rather than 100 percent ownership interest in property) 
in which UNUM and another party, such as a real estate developer or 
manager, participate as joint venturer partners (or co-venturers). 
Joint venture investments typically involve several particular features 
by virtue of the terms and conditions of the joint venture agreements 
that may, when UNUM's joint venture interest is shared, result in 
possible violations of section 406 of the Act.
    (a) Additional Capital Contributions to Joint Ventures
    26. As in the case of investments made entirely by UNUM, joint 
venture real estate investments sometimes require additional operating 
capital. Typically, a joint venture agreement will provide for a 
capital call by the general partner of the joint venture to be made to 
each joint venturer under which each venturer will be requested to 
provide the needed capital. Capital contributions are generally 
requested on a pro rata basis either in the form of an equity 
contribution or a loan to the joint venture. If one joint venturer 
refuses to contribute its pro rata equity share of the capital call, 
the other joint venturer(s) may contribute additional capital to cover 
the short-fall and thereby ``squeeze down'' the interest in the venture 
of the non-contributing joint venturer.<SUP>26</SUP>
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    \26\ In the case of a call for additional capital involving a 
typical joint venture arrangement entered into between parties 
dealing at arm's length, the joint venture agreement may commonly 
provide that the equity interest of any non-contributing venturer be 
re-adjusted, or ``squeezed down'', on a capital interest basis. This 
involves re-adjusting the equity interests of the venturers solely 
on the basis of the percentage of total capital contributed without 
taking into account any appreciation on the underlying property. 
This ``capital interest'' adjustment can substantially diminish the 
equity interest of the non-contributing venturer in the actual 
current market value of the underlying property. Thus, this type of 
re-adjustment is intended to provide an incentive to all venturers 
to make their proportionate capital contributions so that 
improvements can be made and the operation of a property continued 
without burdening the other venturers.

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[[Page 41447]]

    Alternatively, if sufficient additional capital is not provided by 
the joint venturers, other financing may be sought, or the joint 
venture may be liquidated. In the case of a capital call where UNUM's 
joint venture interest is shared by two or more Accounts, a 
determination must be made on behalf of each Account participating in 
the shared investment with respect to whether it is appropriate for the 
Account to provide its proportionate share of additional capital 
requested by the joint venture. The general rule that UNUM will follow 
is that each Account will be given the opportunity to provide its pro 
rata share of the capital call, but for some Accounts it may be 
determined to be appropriate to provide less than a full share or no 
additional capital at all. In such cases, the interest of the Account 
would be reduced proportionately on a fair market basis. In the case of 
ERISA-Covered Accounts, all decisions regarding the making of 
additional capital contributions must be approved by the independent 
fiduciary for the Account. In addition to situations where some 
Accounts participating in the ownership of UNUM's joint venture 
interest may not be in a position to provide their share of a capital 
call, other situations may arise where the co-venturer is unable to 
make its additional capital contributions. Both of these situations may 
result in prohibited transactions under section 406 of the Act.
    27. UNUM Shortfall. The General Account and an ERISA-Covered 
Account may experience a capital call from the general partner of the 
joint venture for either an additional equity or debt contribution. If 
it is determined that the ERISA-Covered Account does not have 
sufficient funds available to meet its contribution requirement, 
<SUP>27</SUP> the General Account may make a loan to the ERISA-Covered 
Account to enable the ERISA-Covered Account to make its required pro 
rata capital contribution. Accordingly, subject to the conditions of 
the proposed exemption, Section II(a)(2) would provide relief for loans 
of this type. Prior to any loan being made, it would have to be 
approved by the independent fiduciary for the ERISA-Covered Account. 
Such loan will be unsecured and non-recourse, will bear interest at a 
rate that will not exceed the prevailing interest rate on 90-day 
Treasury Bills, will not be callable at any time by the General 
Account, and will be prepayable at any time without penalty at the 
discretion of the independent fiduciary of the ERISA-Covered Account. 
In addition, the General Account may make an additional equity 
contribution to the joint venture to cover the ERISA-Covered Account's 
shortfall. In that event, the equity interest of the ERISA-Covered 
Account will be ``squeezed down'' (relative to the equity interest of 
the General Account) on a fair market value basis. This option would 
avoid the capital basis squeeze-down of the ERISA-Covered Account's 
interest by the co-venturer. Such contribution would be made by the 
General Account only after the independent fiduciary for the ERISA-
Covered Account is given an opportunity to make an additional 
contribution. See Section II(a)(3).
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    \27\ In any case where the General Account and one or more 
ERISA-Covered Accounts share UNUM's interest in a joint venture, the 
General Account will always make a capital contribution that is at 
least equivalent proportionately to the highest capital contribution 
made by an ERISA-Covered Account, up to its pro rata share of the 
additional capital call. Thus, the General Account will never be the 
cause as between the Accounts of a capital contribution shortfall by 
UNUM that would result in a capital basis squeeze down by a co-
venturer.
---------------------------------------------------------------------------

    A similar situation may arise where two ERISA-Covered Accounts 
participate in a joint venture investment. If one Account is unable or 
unwilling to provide its proportionate share of a capital call, the 
other Account may be interested in making up the shortfall. This might 
be accomplished by means of an equity contribution with a resulting re-
adjustment on a current fair market value basis in the equity ownership 
interests of the participating Accounts. Thus, any of these 
disproportionate contribution situations between Accounts might result 
in a violation of section 406 of the Act. Subject to the generally 
applicable conditions of this proposed exemption, Section II(a)(3) 
provides relief for these disproportionate contributions.
    28. Co-Venturer Shortfall. In some cases, UNUM's co-venturer in a 
joint venture investment may be unable to meet its additional capital 
obligation, and UNUM may deem it advisable for some or all of the 
participating Accounts to contribute capital in excess of the pro rata 
share of UNUM's Accounts in the joint venture in order to finance the 
operation of the property (and thereby squeeze down the equity interest 
of the co-venturer).<SUP>28</SUP> The applicant is requesting exemptive 
relief that would permit additional capital contributions to be made by 
participating Accounts (including the General Account) on a 
disproportionate basis if the need arises. Any instance involving the 
infusion of additional capital to a joint venture will be considered by 
the independent fiduciary for each ERISA-Covered Account participating 
in the investment and any action to be taken by the Account must be 
approved by the independent fiduciary. These actions might include 
contributing a pro rata share of additional equity capital (including a 
capital contribution that squeezes down the interest of a co-venturer 
on the basis provided in the joint venture agreement), contributing 
more or less than a pro rata share, or contributing no additional 
capital. See Section II(a)(4).
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    \28\ In any case involving a shared joint venture interest held 
by the General Account and an ERISA-Covered Account, if it is 
determined that the ERISA-Covered Account will contribute its pro 
rata share of extra capital, the General Account would also 
contribute at least its pro rata share of such capital.
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(b) Third Party Purchases of Joint Venture Properties
    29. Under the terms of typical joint venture agreements, if an 
offer is received from a third party to purchase the assets of the 
joint venture, and one joint venture partner (irrespective of the 
percentage ownership interest of the joint venture partner) wishes to 
accept the offer, the other joint venture partner must either (1) also 
accept the offer, or (2) buy out the first partner's interest at the 
portion of the offer price that is proportionate to the first partner's 
share of the venture. For example, if UNUM on behalf of the Accounts 
and a real estate developer are joint venture partners in a property 
and an offer is received from another person to acquire the entire 
property that the developer wants to accept, UNUM on behalf of the 
Accounts would be obligated either to sell its interest also to the 
third-party or to buy out the interest of the developer at the portion 
of the price offered by the third party proportionate to the 
developer's share of the venture. When UNUM's interest in a real estate 
joint venture is shared by two or more Accounts, it is likely that the 
same decision will be appropriate for each Account in any third-party 
purchase situation. See sections I(b) and II(b)(1). It is also 
possible, however, that it might be in the interests of some Accounts 
to reject the offer and buy-out the developer, while other Accounts 
might not have the funds to do so or, for some other reason, would 
elect to sell to the third party. The joint venture agreements 
typically require, however, that UNUM on behalf of the Accounts provide 
the co-venturer with a unified buy or sell reply. Thus, in making a buy 
or sell decision in any of these cases involving an ERISA-Covered 
Account,

[[Page 41448]]

UNUM might be deemed to be acting in violation of section 406 of the 
Act. Further, in order to resolve situations where the same reply is 
not appropriate for all participating Accounts, various alternatives 
may be adopted. For example, the Account(s) that wishes to continue 
owning the property may be willing and able to buy out not only the co-
venturer, but also the other participating Account(s) that wishes to 
accept the third party offer to sell. Or, one Account may be willing 
and able to buy-out the co-venturer while the other Account chooses to 
continue holding its original interest in the property. Alternatively, 
all of the Accounts may choose to participate in the buy-out, but on a 
basis that is not in proportion to their existing ownership interests. 
Such alternatives, when an ERISA-Covered Account is involved, while all 
possibly desirable from case to case, may also raise questions under 
section 406 of the Act, whether or not the General Account is a 
participant in the investment. Accordingly, the applicant is requesting 
exemptive relief that would permit UNUM to respond to third-party 
purchase offers as appropriate under the circumstances. Such a response 
might involve acceptance of the offer on behalf of all participating 
Accounts, a buy-out of a co-venturer by some or all of the 
participating Accounts on a pro rata or non-pro rata basis, or a buy-
out of the interest of one participating Account (and of the co-
venturer) by other participating Accounts. Any action by any ERISA-
Covered Account in these situations will be required to be approved by 
the independent fiduciary for the Account in accordance with the 
stalemate procedure, as described below (see rep. 30, below).
    30. In a case involving the sharing of a joint venture interest 
between two ERISA-Covered Accounts, if one ERISA-Covered Account wishes 
to buy out the co-venturer and the other ERISA-Covered Account is 
unable or unwilling to do so, the ERISA-Covered Account wishing to buy 
out the co-venturer would have the opportunity to do so if the other 
ERISA-Covered Account's interests can also be accommodated. This could 
be accomplished if, for example (1) the second ERISA-Covered Account 
wishes to sell its interest to the first ERISA-Covered Account (at a 
proportionate share of the price offered by the third party offeror) 
and the first ERISA-Covered Account agrees; or (2) the second ERISA-
Covered Account wishes to continue holding its original interest. If, 
however, the second ERISA-Covered Account wishes to sell its interest 
and the first ERISA-Covered Account is unwilling or unable to buy it, 
both Accounts would be required to sell to the third party offeror in 
order to avoid the expenditure of additional funds by an unwilling 
Account.
    If the General Account participates in a joint venture interest 
subject to a third party purchase offer, the stalemate procedure would 
provide the same alternatives, except that if the General Account 
wishes to accept the third party purchase offer and the ERISA-Covered 
Account wishes to buy out the co-venturer (and is unwilling or unable 
to buy out the General Account's interest), the General Account would 
be required to buy out the co-venturer with the ERISA-Covered Account. 
See Section II(b).
(c) Rights of First Refusal in Joint Venture Agreements
    31. Under the terms of typical joint venture agreements, if a joint 
venture partner wishes to sell its interest in the venture to a third 
party, the other joint venture partner must be given the opportunity to 
exercise a right of first refusal to purchase the first partner's 
interest at the price offered by the third party. For example, if UNUM 
and a real estate developer are joint venture partners and the 
developer decided to sell its interest to a third party, UNUM would 
have the right to purchase the developer's interest at the price 
offered by the third party. In the case of shared real estate joint 
ventures, the decision by UNUM on behalf of the Accounts with respect 
to whether or not to exercise a right of first refusal might raise 
questions under section 406 of the Act since each Account participating 
in the investment might be affected differently by such decision. 
Because, under the terms of the joint venture agreement, only one 
option (exercise or not exercise) may be chosen by UNUM on behalf of 
the Accounts, exemptive relief is being requested that would permit 
UNUM to exercise or not exercise a right of first refusal as may be 
appropriate under the circumstances. Any action taken on behalf of an 
ERISA-Covered Account regarding the exercise of such a right would have 
to be approved by the independent fiduciary. Further, under the 
requested exemption, if the General Account and an ERISA-Covered 
Account share a joint venture investment, even though UNUM may 
initially decide on behalf of the General Account not to make a 
purchase under a right of first refusal option, the General Account 
will be required to participate in the purchase of the other joint 
venturer's interest if the independent fiduciary determines that it is 
appropriate for the ERISA-Covered Account to participate in the 
exercise of the right of first refusal on at least a pro rata basis. 
If, however, two Accounts other than the General Account participate in 
a joint venture and agreement cannot be reached on behalf of the 
Accounts on whether to exercise a right of first refusal, the right 
will not be exercised and the co-venturer will be permitted to sell its 
interest to the third party, unless one Account decides to buy-out the 
co-venturer alone. In this regard, it is conceivable that some 
participating Accounts may elect to take advantage of a right of first 
refusal opportunity and buy-out a co-venturer without other 
participating Accounts taking part in the transaction. For example, in 
the case of a shared joint venture investment involving the General 
Account (or any other Account) and an ERISA-Covered Account, if the co-
venturer wishes to accept an offer to sell its interest and the 
independent fiduciary of the ERISA-Covered Account decides not to have 
the account participate in purchasing the co-venturer's interest, the 
General Account (or other participating Account) would be free to make 
the purchase on its own. The exercise of a right of first refusal on 
such a disproportionate basis might also raise questions under section 
406 of the Act for which exemptive relief may be needed. See Section 
II(c).
(d) Buy-Sell Provisions in Joint Venture Agreements
    32. Joint venture agreements entered into by UNUM typically provide 
that one joint venture partner may demand that the other partner either 
sell its interest to the first partner at a price determined by the 
terms of the joint venture agreement or buy out the interest of the 
first partner at such price. If the other joint venture partner refuses 
to exercise either option within a specified period, it must sell its 
interest to the first partner at the stated price. These ``buy-sell'' 
provisions are generally used to resolve serious difficulties or 
impasses in the operation of a joint venture, but generally a joint 
venture agreement permits the buy-sell provision to be exercised at any 
time. As in the situations discussed above, the decision by UNUM on 
behalf of the Accounts to make a buy-sell offer, or its reaction to 
such an offer made by a co-venturer, may affect various participating 
Accounts differently. Accordingly, any decision made by UNUM in these 
cases involving ERISA-Covered Accounts might raise questions under 
section 406 of the Act. The applicant is requesting exemptive relief 
that would permit UNUM to make an appropriate decision under the

[[Page 41449]]

circumstances on behalf of all participating Accounts to make a buy-
sell offer to a co-venturer or to react to a buy-sell offer from a co-
venturer. Any such decision must be approved by the independent 
fiduciary for each ERISA-Covered Account participating in the 
investment.
    33. In the event that UNUM recommends the initiation of the buy-
sell option against the co-venturer, UNUM will exercise the option if 
the independent fiduciary on behalf of each participating ERISA-Covered 
Account approves the recommendation. If, in the case of a General 
Account/ERISA-Covered Account shared joint venture investment, the 
independent fiduciary does not agree with UNUM's recommendation, the 
independent fiduciary would be given the opportunity to buy out the 
General Account's interest at a price to be determined in accordance 
with the independent appraisal procedure described above. If the 
independent fiduciary declines to buy out the General Account's 
interest, the General Account would then have the opportunity to buy 
out the ERISA-Covered Account's interest, (provided the independent 
fiduciary for the ERISA-Covered Account approves of such sale), also in 
accordance with the independent appraisal procedure. If neither the 
General Account nor the ERISA-Covered Accounts buys out the other's 
interest in the joint venture investment, UNUM would take the course of 
action most consistent with the determination of the ERISA-Covered 
Account, and would, therefore, not exercise the buy-sell option.
    In the event that the co-venturer initiates the buy-sell option 
with respect to a shared joint venture investment, UNUM must either 
sell its entire interest to the co-venturer or reject the offer and 
buy-out the co-venturer's interest at that price. If the participating 
Accounts agree upon the course of action to be taken, UNUM will then 
take the agreed action. If no agreement is reached, various 
alternatives may be considered. For example, in the case of a General 
Account/ERISA-Covered Account shared joint venture investment, if UNUM 
recommends rejection of the offer (and consequent purchase of the co-
venturer's interest), but the independent fiduciary wants to accept the 
offer, the General Account would have the option to purchase the co-
venturer's interest solely on behalf of the General Account. If the 
General Account chooses this option, the ERISA-Covered Account (which 
wished to accept the co-venturer's offer) would have the opportunity to 
sell its interest to the General Account, at a proportionate share of 
the price offered by the co-venturer, but would not be required to do 
so. However, if the General Account declines to purchase the ERISA-
Covered Account's interest where the ERISA-Covered Account wishes to 
accept the buy-sell offer, the entire joint venture interest would be 
sold to the co-venturer. If the ERISA-Covered Account wishes to reject 
the buy-sell offer (and purchase the co-venturer's interest) and the 
General Account wishes to accept the offer, the General Account would 
be required to purchase its proportionate share of the co-venturer's 
interest, unless the independent fiduciary for the ERISA-Covered 
Account elects to purchase more than its proportionate share (including 
the entire co-venturer interest).
    Where two or more ERISA-Covered Accounts share a joint venture 
investment, the stalemate procedure is similar, except that no ERISA-
Covered Account would be required to purchase the interest of a co-
venturer (and thus expend additional funds) against its wishes. See 
Section II(d).
(e) Transactions With Joint Venture Party in Interest
    34. The applicant represents that when the General Account holds a 
50 percent or more interest in a joint venture, the joint venture 
itself may be deemed to be a party in interest under section 3(14)(G) 
of the Act. Thus, any subsequent transaction involving the joint 
venture and an ERISA-Covered Account that is also participating in the 
venture (e.g., an additional contribution of capital) may be deemed to 
be a transaction between the plans participating in an ERISA-Covered 
Account and a party in interest (the joint venture itself) in violation 
of section 406. Accordingly, the applicant is requesting exemptive 
relief from the restrictions of section 406(a) of the Act, only, which 
would permit any additional equity capital contributions to a joint 
venture by an ERISA-Covered Account which is participating in an 
interest in the joint venture, where the joint venture is a party in 
interest solely by reason of the ownership on behalf of the General 
Account of a 50 percent or more interest in such joint venture. Such 
action would be conditioned upon the approval of the independent 
fiduciary for the ERISA-Covered Account. See Section III.

Initial Allocations

    The applicant, UNUM, has not requested exemptive relief for the 
initial allocation of shared equity real estate investments by UNUM 
among two or more Accounts, at least one of which is an ERISA-Covered 
Account. UNUM represents that neither the General Account nor any 
ERISA-Covered Account will incur any debt in connection with the 
initial allocation of the shared investment. In this regard, it is the 
view of the Department that the mere investment of assets of a plan on 
identical terms with a fiduciary's investment for his or her own 
account in the equity interests of a shared real estate investment 
would not, in itself, cause the fiduciary to have an interest in the 
transaction that may affect his or her best judgment as a fiduciary. 
Therefore, such an investment would not, in itself, violate section 
406(b)(1) which prohibits a fiduciary from dealing with the assets of a 
plan in his or her own interest or for his or her account. In addition, 
such shared investment, pursuant to reasonable procedures established 
by the fiduciary, would not cause the fiduciary to act (or represent) a 
party whose interests are adverse to those of the plan. Therefore, such 
an investment would not, in itself, violate section 406(b)(2) which 
states that a fiduciary may not act in any capacity in a transaction 
involving the plan on behalf of a party whose interests are adverse to 
those of the plan.
    With respect to section 406(a)(1)(D) of the Act which prohibits the 
transfer to, or use by or for the benefit of a party in interest 
(including a fiduciary) of the assets of a plan, it is the opinion of 
the Department that a party in interest does not violate that section 
merely because he or she derives some incidental benefit from a 
transaction involving plan assets. We are assuming, for purposes of 
this analysis, that the fiduciary does not rely upon and is not 
otherwise dependent upon the participation of plans in order to 
undertake its share of the investment.
    Thus, with respect to the investment of plan assets in shared 
equity investments which are made simultaneously with investments by a 
fiduciary for its own account on identical terms, it is the view of the 
Department that any benefit that the fiduciary might derive from such 
investment under these circumstances is incidental and would not 
violate section 406(a)(1)(D) of the Act.

Notice to Interested Persons

    Within 30 days of publication of this proposed exemption in the 
Federal Register, UNUM will provide the notice required under 29 CFR 
section 2570.43(b) by posting a copy of all materials to be required in 
that notice at business locations maintained by

[[Page 41450]]

UNUM and its affiliates at which participants in the UNUM Plan work. In 
addition, if any new ERISA-Covered Account proposes to participate in 
shared investments covered by the exemption proposed herein, the 
representatives of that Account will be provided with a copy of this 
proposed exemption and the final exemption before beginning to 
participate in any shared investments.

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 Code does not relieve a fiduciary or other 
party in interest or disqualified person from certain other provisions 
of the Act and 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) The proposed exemption, if granted, will not extend to 
transactions prohibited under section 406(b)(3) of the Act and section 
4975(c)(1)(F) of the Code;
    (3) 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; and
    (4) The proposed exemption, if granted, will be supplemental to, 
and not in derogation of, any other provisions of the Act and 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.

Written Comments and Hearing Requests

    All interested persons are invited to submit written comments or 
requests for a hearing on the pending exemption to the address above, 
within the time period set forth above. All comments will be made a 
part of the record. Comments and requests for a hearing should state 
the reasons for the writer's interest in the pending exemption. 
Comments received will be available for public inspection with the 
application for exemption at the address set forth above.

Proposed Exemption

Section I--Exemption for Certain Transactions Involving the Management 
of Investments Shared by Two or More Accounts Maintained by UNUM

    If the exemption is granted, as indicated below, the restrictions 
of certain sections of the Act and the sanctions resulting from the 
application of certain parts of section 4975 of the Code shall not 
apply to the following transactions if the conditions set forth in 
Section IV are met:
    (a) Transfers Between Accounts--(1) The restrictions of section 
406(b)(2) of the Act shall not apply to the sale or transfer of an 
interest in a shared investment (including a shared joint venture 
interest) between two or more Accounts (except the General Account), 
provided that each ERISA-Covered Account pays no more, or receives no 
less, than fair market value for its interest in a shared investment.
    (2) The restrictions of sections 406(a), 406(b)(1) and 406(b)(2) of 
the Act and the sanctions resulting from the application of section 
4975 of the Code by reason of section 4975(c)(1) (A) through (E) of the 
Code shall not apply to the sale or transfer of an interest in a shared 
investment (including a shared joint venture interest) between ERISA-
Covered Accounts and the General Account, provided that such transfer 
is made pursuant to stalemate procedures, described in this notice of 
proposed exemption, adopted by the independent fiduciary for the ERISA-
Covered Account, and provided further that the ERISA-Covered Account 
pays no more or receives no less than fair market value for its 
interest in a shared investment.
    (b) Joint Sales of Property--The restrictions of sections 406(a), 
406(b)(1) and 406(b)(2) of the Act and the sanctions resulting from the 
application of section 4975 of the Code by reason of section 4975(c)(1) 
(A) through (E) of the Code shall not apply to the sale to a third 
party of the entire interest in a shared investment (including a shared 
joint venture interest) by two or more Accounts, provided that each 
ERISA-Covered Account receives no less than fair market value for its 
interest in the shared investment.
    (c) Additional Capital Contributions--The restrictions of sections 
406(a), 406(b)(1) and 406(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 either to the 
making of a pro rata equity capital contribution by one or more of the 
Accounts to a shared investment; or to the making of a Disproportionate 
[as defined in Section V(e)] equity capital contribution by one or more 
of such Accounts which results in an adjustment in the equity ownership 
interests of the Accounts in the shared investment on the basis of the 
fair market value of such interests subsequent to such contribution, 
provided that each ERISA-Covered Account is given an opportunity to 
make a pro rata contribution.
    (d) Lending of Funds--The restrictions of sections 406(a), 
406(b)(1) and 406(b)(2) of the Act and the sanctions resulting from the 
application of section 4975 of the Code by reason of section 4975(c)(1) 
(A) through (E) of the Code shall not apply to the lending of funds 
from the General Account to an ERISA-Covered Account to enable the 
ERISA-Covered Account to make an additional pro rata contribution, 
provided that such loan--
    (A) Is unsecured and non-recourse with respect to participating 
plans,
    (B) Bears interest at a rate not to exceed the prevailing rate on 
90-day Treasury Bills,
    (C) Is not callable at any time by the General Account, and
    (D) Is prepayable at any time without penalty.

Section II--Exemption for Certain Transactions Involving the Management 
of Joint Venture Interests Shared by Two or More Accounts Maintained by 
UNUM

    If the exemption is granted, the restrictions of certain sections 
of the Act and the sanctions resulting from the application of certain 
parts of section 4975 of the Code shall not apply to the following 
transactions resulting from the sharing of an investment in a real 
estate joint venture between two or more Accounts, if the conditions 
set forth in Section IV are met:
    (a) Additional Capital Contributions--(1) The restrictions of 
sections 406(a), 406(b)(1) and 406(b)(2) of the Act and the sanctions 
resulting from the application of section 4975 of the Code by reason of 
section 4975(c)(1) (A) through (E) of the Code shall not apply to the 
making of additional pro rata equity capital contributions by one or 
more Accounts participating in the joint venture.

[[Page 41451]]

    (2) The restrictions of sections 406(a), 406(b)(1) and 406(b)(2) of 
the Act and the sanctions resulting from the application of section 
4975 of the Code by reason of section 4975(c)(1) (A) through (E) of the 
Code shall not apply to the lending of funds from the General Account 
to an ERISA-Covered Account to enable the ERISA-Covered Account to make 
an additional pro rata capital contribution, provided that such loan--
    (A) Is unsecured and non-recourse with respect to the participating 
plans,
    (B) Bears interest at a rate not to exceed the prevailing rate on 
90-day Treasury Bills,
    (C) Is not callable at any time by the General Account, and
    (D) Is prepayable at any time without penalty.
    (3) The restrictions of sections 406(a), 406(b)(1) and 406(b)(2) of 
the Act and the sanctions resulting from the application of section 
4975 of the Code by reason of section 4975 (c)(1) (A) through (E) of 
the Code shall not apply to the making of Disproportionate [as defined 
in section V(e)] additional equity capital contributions (or the 
failure to make such additional contributions) in the joint venture by 
one or more Accounts which result in an adjustment in the equity 
ownership interests of the Accounts in the joint venture on the basis 
of the fair market value of such joint venture interests subsequent to 
such contributions, provided that each ERISA-Covered Account is given 
an opportunity to provide its proportionate share of the additional 
equity capital contributions; and
    (4) In the event a co-venturer fails to provide all or any part of 
its pro rata share of an additional equity capital contribution, the 
restrictions of sections 406(a), 406(b)(1) and 406(b)(2) of the Act and 
the sanctions resulting from the application of section 4975 of the 
Code by reason of section 4975(c)(1) (A) through (E) of the Code shall 
not apply to the making of Disproportionate additional equity capital 
contributions to the joint venture by the General Account and an ERISA-
Covered Account up to the amount of such contribution not provided by 
the co-venturer which result in an adjustment in the equity ownership 
interests of the Accounts in the joint venture on the basis provided in 
the joint venture agreement, provided that such ERISA-Covered Account 
is given an opportunity to participate in all additional equity capital 
contributions on a proportionate basis.
    (b) Third Party Purchase Offers--(1) In the case of an offer by a 
third party to purchase any property owned by the joint venture, the 
restrictions of sections 406(a), 406(b)(1) and 406(b)(2) of the Act and 
the sanctions resulting from the application of section 4975 of the 
Code by reason of section 4975(c)(1) (A) through (E) of the Code shall 
not apply to the acquisition by the Accounts, including one or more 
ERISA-Covered Account[s], on either a proportionate or Disproportionate 
basis of a co-venturer's interest in the joint venture in connection 
with a decision on behalf of such Accounts to reject such purchase 
offer, provided that each ERISA-Covered Account is first given an 
opportunity to participate in the acquisition on a proportionate basis; 
and
    (2) The restrictions of section 406(b)(2) of the Act shall not 
apply to any acceptance by UNUM on behalf of two or more Accounts, 
including one or more ERISA-Covered Account[s], of an offer by a third 
party to purchase a property owned by the joint venture even though the 
independent fiduciary for one (but not all) of such ERISA-Covered 
Account[s] has not approved the acceptance of the offer, provided that 
such declining ERISA-Covered Account[s] are first afforded the 
opportunity to buy out both the co-venturer and ``selling'' Account's 
interests in the joint venture.
    (c) Rights of First Refusal--(1) In the case of the right to 
exercise a right of first refusal described in a joint venture 
agreement to purchase a co-venturer's interest in the joint venture at 
the price offered for such interest by a third party, the restrictions 
of sections 406(a), 406(b)(1) and 406(b)(2) of the Act and the 
sanctions resulting from the application of section 4975 of the Code by 
reason of section 4975(c)(1) (A) through (E) of the Code shall not 
apply to the acquisition by such Accounts, including one or more ERISA-
Covered Account[s], on either a proportionate or Disproportionate basis 
of a co-venturer's interest in the joint venture in connection with the 
exercise of such a right of first refusal, provided that each ERISA-
Covered Account is first given an opportunity to participate on a 
proportionate basis; and
    (2) The restrictions of section 406(b)(2) of the Act shall not 
apply to any decision by UNUM on behalf of the Accounts not to exercise 
such a right of first refusal even though the independent fiduciary for 
one (but not all) of such ERISA-Covered Accounts has approved the 
exercise of the right of first refusal, provided that none of the 
ERISA-Covered Accounts that approved the exercise of the right of first 
refusal decides to buy-out the co-venturer on its own.
    (d) Buy-Sell Options--(1) In the case of the exercise of a buy-sell 
option set forth in the joint venture agreement, the restrictions of 
sections 406(a), 406(b)(1) and 406(b)(2) of the Act and the sanctions 
resulting from the application of section 4975 of the Code by reason of 
section 4975(c)(1) (A) through (E) of the Code shall not apply to the 
acquisition by one or more of the Accounts on either a proportionate or 
Disproportionate basis of a co-venturer's interest in the joint venture 
in connection with the exercise of such a buy-sell option, provided 
that each ERISA-Covered Account is first given the opportunity to 
participate on a proportionate basis; and
    (2) The restrictions of section 406(b)(2) of the Act shall not 
apply to any decision by UNUM on behalf of two or more Accounts, 
including one or more ERISA-Covered Account[s], to sell the interest of 
such Accounts in the joint venture to a co-venturer even though the 
independent fiduciary for one (but not all) of such ERISA-Covered 
Account[s] has not approved such sale, provided that such disapproving 
ERISA-Covered Account is first afforded the opportunity to purchase the 
entire interest of the co-venturer.

Section III--Exemption for Transactions Involving a Joint Venture or 
Persons Related to a Joint Venture

    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, if the 
conditions in Section IV are met, to any additional equity capital 
contributions to a joint venture by an ERISA-Covered Account that is 
participating in an interest in the joint venture, where the joint 
venture is a party in interest solely by reason of the ownership on 
behalf of the General Account of a 50 percent or more interest in such 
joint venture.

Section IV--General Conditions

    (a) Each contractholder or prospective contractholder in an ERISA-
Covered Account which shares or proposes to share real estate 
investments is provided with a written description of potential 
conflicts of interest that may result from the sharing, a copy of the 
notice of pendency, and a copy of the exemption if granted.
    (b) An independent fiduciary must be appointed on behalf of each 
ERISA-Covered Account participating in the sharing of investments. The 
independent fiduciary shall be either--
    (1) A business organization which has at least five years of 
experience with

[[Page 41452]]

respect to commercial real estate investments, or
    (2) A committee composed of three to five individuals who each have 
at least five years of experience with respect to commercial real 
estate investments.
    (c) The independent fiduciary or independent fiduciary committee 
member shall not be or consist of UNUM or any of its affiliates.
    (d) No organization or individual may serve as an independent 
fiduciary for an ERISA-Covered Account for any fiscal year if the gross 
income (other than fixed, non-discretionary retirement income) received 
by such organization or individual (or any partnership or corporation 
of which such organization or individual is an officer, director, or 
ten percent or more partner or shareholder) from UNUM, its affiliates 
and the ERISA-Covered Accounts for that fiscal year exceeds five 
percent of its or his or her annual gross income from all sources for 
the prior fiscal year. If such organization or individual had no income 
for the prior fiscal year, the five percent limitation shall be applied 
with reference to the fiscal year in which such organization or 
individual serves as an independent fiduciary.
    The income limitation will include income for services rendered to 
the Accounts as independent fiduciary under any prohibited transaction 
exemption(s) granted by the Department.
    In addition, no organization or individual who is an independent 
fiduciary, and no partnership or corporation of which such organization 
or individual is an officer, director or ten percent or more partner or 
shareholder, may acquire any property from, sell any property to, or 
borrow any funds from, UNUM, its affiliates, or any Account maintained 
by UNUM or its affiliates, during the period that such organization or 
individual serves as an independent fiduciary and continuing for a 
period of six months after such organization or individual ceases to be 
an independent fiduciary, or negotiate any such transaction during the 
period that such organization or individual serves as independent 
fiduciary.
    (e) The independent fiduciary will approve the initial allocation 
of a shared investment to an ERISA-Covered Account. In addition, the 
independent fiduciary acting on behalf of an ERISA-Covered Account 
shall have the responsibility and authority to approve or reject 
recommendations made by UNUM or its affiliates for each of the 
transactions in this proposed exemption. In the case of a possible 
transfer or exchange of any interest in a shared investment between the 
General Account and an ERISA-Covered Account, the independent fiduciary 
shall also have full authority to negotiate the terms of the transfer. 
UNUM shall involve the independent fiduciary in the consideration of 
contemplated transactions prior to the making of any decisions, and 
shall provide the independent fiduciary with whatever information may 
be necessary in making its determinations.
    In addition, the independent fiduciary shall review on an as-needed 
basis, but not less than twice annually, the shared real estate 
investments in the ERISA-Covered Account to determine whether the 
shared real estate investments are held in the best interest of the 
ERISA-Covered Account.
    (f) UNUM maintains for a period of six years from the date of the 
transaction the records necessary to enable the persons described in 
paragraph (g) of this Section to determine whether the conditions of 
this exemption have been met, except that a prohibited transaction will 
not be considered to have occurred if, due to circumstances beyond the 
control of UNUM or its affiliates, the records are lost or destroyed 
prior to the end of the six-year period.
    (g)(1) Except as provided in paragraph (2) of this subsection (g) 
and notwithstanding any provisions of subsection (a)(2) and (b) of 
section 504 of the Act, the records referred to in subsection (f) of 
this Section are unconditionally available at their customary location 
for examination during normal business hours by--
    (A) Any duly authorized employee or representative of the 
Department or the Internal Revenue Service,
    (B) Any fiduciary of a plan participating in an ERISA-Covered 
Account who has authority to acquire or dispose of the interests of the 
plan, or any duly authorized employee or representative of such 
fiduciary,
    (C) Any contributing employer to any plan participating in an 
ERISA-Covered Account or any duly authorized employee or representative 
of such employer, and
    (D) Any participant or beneficiary of any plan participating in an 
ERISA-Covered Account, or any duly authorized employee or 
representative of such participant or beneficiary.
    (2) None of the persons described in subparagraphs (B) through (D) 
of this subsection (g) shall be authorized to examine trade secrets of 
UNUM, any of its affiliates, or commercial or financial information 
which is privileged or confidential.

Section V--Definitions

    For the purposes of this exemption:
    (a) An affiliate of UNUM includes--
    (1) Any person directly or indirectly through one or more 
intermediaries, controlling, controlled by, or under common control 
with UNUM,
    (2) Any officer, director or employee of UNUM or person described 
in section V(a)(1), and
    (3) Any partnership in which UNUM is a partner.
    (b) An Account means the General Account (including the general 
accounts of UNUM affiliates), any separate account of UNUM or its 
affiliate, or any investment advisory account, trust, limited 
partnership or other investment account or fund managed by UNUM.
    (c) The General Account means the general asset account of UNUM and 
any of its affiliates which are insurance companies licensed to do 
business in at least one State as defined in section 3(10) of the Act.
    (d) An ERISA-Covered Account means any Account (other than the 
General Account) which consists solely of the UNUM Plan or other plans 
maintained by UNUM or its affiliates.
    (e) Disproportionate means not in proportion to an Account's 
existing equity ownership interest in an investment, joint venture or 
joint venture interest.
    The proposed exemption, if granted, will be subject to the express 
conditions that the material facts and representations contained in the 
application are true and complete, and that the application accurately 
describes all material terms of the transactions to be consummated 
pursuant to the exemption.

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

General Information

    The attention of interested persons is directed to the following:
    (1) The fact that a transaction is the subject of an exemption 
under section 408(a) of the Act and/or section 4975(c)(2) of the Code 
does not relieve a fiduciary or other party in interest of 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

[[Page 41453]]

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 25th day of July, 1996.
Ivan Strasfeld,
Director of Exemption Determinations, Pension and Welfare Benefits 
Administration, U.S. Department of Labor.
[FR Doc. 97-20243 Filed 7-31-97; 8:45 am]
BILLING CODE 4510-29-P