Proposed Exemptions; Profit Sharing Plan for Employees of Lewis- Gale Clinic, Inc., et al.

DEPARTMENT OF LABOR

[Application No. D-9654, et al.]

Proposed Exemptions; Profit Sharing Plan for Employees of Lewis-

Gale Clinic, Inc., et al.

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

Unless otherwise stated in the Notice of Proposed Exemption, all

interested persons are invited to submit written comments, and with

respect to exemptions involving the fiduciary prohibitions of section

406(b) of the Act, requests for hearing 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. 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.

Profit Sharing Plan for Employees of Lewis-Gale Clinic, Inc. (the

Plan) Located in Salem, Virginia

[Exemption Application No. D-9654]

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 section 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 proposed cash sale (the Sale) of certain

shares of stock (the Shares) from certain individually-directed

accounts in the Plan (the Accounts) to Lewis-Gale Clinic, Inc. (the

Clinic), a party in interest with respect to the Plan.

This proposed exemption is conditioned on the following

requirements: (1) the terms and conditions of the Sale are at least as

favorable to the Accounts as those obtainable in an arm's-length

transaction with an unrelated party; (2) the Sale is a one-time cash

transaction; (3) the Accounts are not required to pay any commissions,

costs or other expenses in connection with the Sale; (4) the Sales

price for the Shares is based upon its fair market value as determined

by a qualified, independent appraiser; and (5) within ninety days of

the grant of this proposed exemption, the Clinic files Forms 5330 with

the Internal Revenue Service and pay all applicable excise taxes due

with respect to past prohibited transactions.

Summary of Facts and Representations

1. The Plan is a profit sharing plan sponsored by the Clinic, a

Virginia professional corporation owned exclusively by licensed

physicians engaged in the practice of medicine. The Clinic employs 837

full-time and part-time employees of which 124 are licensed physicians.

The Clinic services the Greater Roanoke Valley with a central location

located in Salem, Virginia. The Clinic also operates various satellite

clinics in towns and counties within a fifty mile radius of its primary

location.

2. As of March 31, 1994, the Plan had total assets of $58,733,461

and 690 participants. The Plan permits each participant to direct the

investments of his or her account among several funds including a fund

commonly referred to as Fund F. First Union National Bank of Virginia

(First Union) serves as trustee of all Plan assets except those held in

Fund F. The board of directors of the Clinic serves as the trustee with

respect to the Plan assets held in Fund F.

3. Fund F is designed to be invested exclusively in the common

stock of the Lewis-Gale Building Corporation (the Building

Corporation), which was incorporated on December 22, 1970. From the

time of such incorporation until 1983, all of the outstanding common

stock of the Building Corporation (the Stock) was owned exclusively by

the physicians and certain administrative personnel. The primary

purpose of the Building Corporation is to own and operate certain real

property facilities which are leased to the Clinic and other health

care providers for use in rendering medical services.\1\

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\1\The Clinic represents that the Building Corporation is a real

estate operating company within the meaning of 29 CFR 2510.3-101(e).

Therefore, with regard to any ownership by the Plan, the Building

Corporation's assets are not considered plan assets. However, the

Department expresses no opinion as to whether the underlying assets

of the Building Corporation contain plan assets under 29 CFR 2510.3-

101(e).

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4. As a condition to employment, each physician is contractually

required to purchase a fixed dollar amount of the Stock. In 1983, the

Building Corporation and the physicians, upon the advice of counsel,

amended the Plan and the pre-existing stock restriction agreement to

permit the Plan to acquire the Stock, thereby allowing the physicians

to satisfy their contractual obligations to purchase the Stock by self-

directing portions of their individual account balances into Fund F.\2\

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\2\The Department notes that the decisions of the fiduciaries on

behalf of the Plan, in connection with the acquisition and holding

of the Building Corporation Stock are governed by the fiduciary

responsibility requirements of Part 4, Subpart B of Title I. In this

regard, the Department herein is not proposing relief for any

violations of Part 4 of the Act which may have arisen as a result of

the investment in and subsequent holding of the Stock.

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Because the Stock is not publicly traded, the Building Corporation

values the Stock on an annual basis using its historic valuation

formula under the existing stock purchase agreement between the

Building Corporation and its shareholders. The valuation formula

incorporates the fair market values of the underlying assets of the

Building Corporation, which are valued annually by a qualified,

independent real estate appraiser. The Building Corporation has

consistently utilized this valuation formula to set the price per share

for all sale and purchase transactions involving the Stock.

Fund F has experienced an average annual rate of return of 11.3

percent, and investment in this fund is open to all participants in the

Plan. As of May 11, 1994, Fund F held 16,413 shares (the Shares) of the

Stock which represents approximately eighty-two percent of the issued

and outstanding shares of the Stock. The remaining issued and

outstanding shares of the Stock are owned by physicians and certain

administrators. The terms of Fund F require a participant electing to

invest in Stock to remain invested in Fund F until his or her death,

disability, retirement or other termination of employment. Upon such

occurrences, a number of shares of the Stock equal to the value of such

participant's Fund F account balance will be sold back to the Building

Corporation for cash and such cash proceeds distributed to the

participant as a part of his or her Plan account balance.\3\

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\3\The Department expresses no opinion as to whether the terms

and conditions of Fund F violated any provision of Part 4, Subpart B

of Title I of the Act.

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5. Between 1988 and 1990, thirteen physicians (the Physicians),

upon the advice of counsel, sold their individual shares of the Stock

for cash to their individually-directed accounts in the Plan indirectly

through the Building Corporation. Three of the Physicians were officers

of the Clinic. The Clinic states that, as an indirect result of these

sales, some of the accounts of the Physicians held shares of the Stock

in excess of twenty-five percent of the balance of their account at

some point. Because of the party in interest/ disqualified person

relationships and the past purchases by the accounts from the

Physicians, the Clinic is aware of the fact that prohibited

transactions have occurred in violation of the Act. Accordingly, the

Clinic represents that within ninety days of the grant of this proposed

exemption, the Clinic will file Forms 5330 with the Internal Revenue

Service and will pay all applicable excise taxes due with respect to

past prohibited transactions.\4\

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\4\Because of the administrative difficulties involved in

locating certain Physicians who were involved in these prohibited

purchases by their accounts, the Clinic has represented that it will

be responsible for the filing of the Forms 5330 and the payment of

all applicable excise taxes resulting from these prohibited

purchases.

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6. Upon discovering that certain accounts in the Plan had engaged

in prohibited transactions, the board of directors, acting as trustee,

froze the assets in Fund F pending resolution of the prohibited

transaction issues. As a result, retiring participants are limited to

receiving only a partial distribution. In order to allow participants

to receive full distributions, the trustee proposes to sell the Shares

to the Clinic. Accordingly, the Clinic requests an administrative

exemption from the Department to permit the Sale under the terms and

conditions described herein.

The Sale will be a one time cash transaction, and the Accounts will

pay no fees or commissions in connection with the Sale. Prior to the

Sale, First Union will become trustee with respect to the Plan assets

in Fund F. At this time, First Union will have the sole investment

discretion over the entire assets of the Plan. Although the initial

decision to sell the Shares was made by the board of directors acting

as trustee, First Union will have the ultimate authority to approve or

disapprove the terms and conditions of the Sale.

7. The Clinic obtained an appraisal of the Stock dated May 13,

1994, from Dianne D. Cobb, CFA, ASA. Ms. Cobb is the Senior Vice

President of Investment Managements Services of Wachovia Bank of North

Carolina which provides analysis with regard to non-publicly traded

securities and securities of closely held businesses. Ms. Cobb

represents that both she and Wachovia Bank of North Carolina are

unrelated to and independent of the Clinic and its affiliates. Relying

upon the discounted future cash flow and recent trades of the Stock,

Ms. Cobb placed the fair market value of the Stock at $764 per share.

Based on this valuation, the value of the Shares, which represent Fund

F's eighty-two percent interest in the Building Corporation, total

$12,539,532.

8. In summary, it is represented that the proposed transaction will

satisfy the statutory criteria for an exemption under section 408(a) of

the Act because: (a) the terms and conditions of the Sale will be at

least as favorable to the Plan as those obtainable in an arm's-length

transaction with an unrelated party; (b) the Sale will be a one-time

cash transaction; (c) the Plan will not be required to pay any

commissions, costs or other expenses in connection with the Sale; and

(d) the Sales price for the Shares will be based upon its fair market

value as determined by a qualified, independent appraiser; and (e)

within ninety days of the grant of this proposed exemption, the Clinic

will file Forms 5330 with the Internal Revenue Service and will pay all

applicable excise taxes due with respect to past prohibited

transactions.

FOR FURTHER INFORMATION CONTACT: Kathryn Parr of the Department,

telephone (202) 219-8971. (This is not a toll-free number.)

Raytech Corporation Salaried Employees Savings Plan (the Salaried

Plan) and Raytech Corporation Hourly Employee Savings Plan (the

Hourly Plan; together, the Plans) Located in Shelton, Connecticut

[Application Nos. D-9722 and D-9723]

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), 406(b)(1) and (b)(2)

of the Act and the sanctions resulting from the application of section

4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the

Code, shall not apply to (1) the proposed extension of credit by

Raytech Corporation (Raytech) to the Plans in the form of payments (the

Makeup Payments) with respect to group annuity contract CG01274B3A (the

GIC) issued by Executive Life Insurance Company (ELIC); and (2) the

Plans' potential repayment of the Makeup Payments (the Repayments),

provided: (a) all terms of such transactions are no less favorable to

the Plans than those which the Plans could obtain in arm's-length

transactions with an unrelated party; (b) no interest and/or expenses

are paid by the Plans; (c) the Makeup Payments are made only in lieu of

payments due from ELIC with respect to the accumulated book value of

the GIC at the time of the Makeup Payments; (d) the Repayments are

restricted to the amounts, if any, paid to the Plans after March 27,

1994, by ELIC or other responsible third parties with respect to the

GIC (the GIC Proceeds); (e) the Repayments do not exceed the total

amount of the Makeup Payments; and (f) the Repayments are waived to the

extent the Makeup Payments exceed the GIC Proceeds.

Summary of Facts and Representations

1. Raytech is a multi-national manufacturer and marketer of

specialty engineered products for heat resistant, inertia control,

energy absorption and transmission applications. In 1988, Raytech

became the sponsor of the Plans, which are defined contribution plans

under section 401(k) of the Code.

2. The Salaried Plan currently has 281 participants and

beneficiaries, and has assets with an approximate aggregate fair market

value of $9,793,000. The Hourly Plan currently has 236 participants and

beneficiaries, and has assets with an approximate aggregate fair market

value of $1,051,000. Effective January 1, 1994, Charles Schwab Trust

Company (the Trustee) was appointed as trustee to the Plans.

3. Investments of funds contributed under the Plans are made by the

Trustee as directed by participants in accordance with provisions of

the Plans. In 1988, the Plans provided two investment options: (i) a

``Guaranteed Interest Fund'' in which the monies were to be held under

a contract or contracts issued by one or more major insurance companies

providing for a stipulated minimum rate of interest, as selected by the

Plans' administrative committee (the Committee) or (ii) a ``Managed

Securities Fund'', consisting of a mutual fund managed by a bank which

was selected by the Committee. Under the provisions of the Salaried

Plan, Raytech's matching contributions could be delivered in cash or

Raytech common stock at the direction of Raytech's Board of Directors.

4. In 1992, both Plans were amended, revising the name of the

Equity Fund from ``Managed Security Fund'' to ``Equity Fund'', and the

Salaried Plan was amended to add an additional investment option in a

Balanced Fund as selected by the Committee. In 1993, both Plans were

amended to change the Guaranteed Interest Fund option. Prior to this

amendment, the Guaranteed Interest Fund provided for monies contributed

in a particular year to be held by a single insurance company (e.g.,

ELIC). Pursuant to this amendment, the Plans now permit investments in

a ``pooled investment fund'' that features insurance company contracts

issued by multiple insurance companies. Under the terms of each of the

Plans, the participants have withdrawal and transfer rights with

respect to their accounts (Withdrawal Events). The circumstances

triggering Withdrawal Events include severance from service,

disability, retirement, death, hardship, transfer of funds and loans.

5. The GIC was issued by ELIC to the Plans in 1988. Employee

savings contributions directed to the Guaranteed Interest Fund and

related Raytech contributions were invested in the GIC during 1988. As

of April 11, 1991, total principal deposited under the GIC plus

accumulated interest under the GIC, less previous withdrawals (the

Accumulated Book Value) for the Plans amounted to $1,774,779. On April

11, 1991 (the Conservation Date), ELIC was seized by the California

Insurance Commissioner and its assets were frozen and its payments

suspended, including the GIC.\5\ Effective September 3, 1993 (the

Closing Date), the California Superior Court approved a rehabilitation/

liquidation plan (the Rehab Plan).\6\ The Rehab Plan provides for the

resolution of ELIC's contractual obligations.

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\5\In this proposed exemption the Department expresses no

opinion as to whether the acquisition and holding of the GIC

violated any provisions of Part 4 of Title I of the Act.

\6\In October, 1992, the Secretary of Labor filed suit against

Raymark Industries, Inc. (Raymark) and certain named fiduciaries in

the U.S.District Court for Connecticut in a case now captioned

Robert B. Reich, Secretary of the U.S. Department of Labor v.

Raymark Industries, Inc., et.al., Civil Action No. 5:92CV 614 (EBB).

The suit named Raytech as a successor in liability to Raymark. The

suit alleged the breach of fiduciary duties under the Act in

connection with the purchase of a group annuity contract from ELIC

to fund the benefits of three Raymark pension plans following an

investigation that began in June, 1991. The Department notes that

the exemption proposed herein is not intended to affect any cause of

action by any participant of the Plans or the Department with

respect to the GIC.

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6. Pursuant to the Rehab Plan, an interim benefit payment (the

Interim Payment) was received by the Plans in the combined amount of

$288,528 in September, 1993. In January, 1994, the Plans were provided

an option to elect to participate in the Rehab Plan or to opt out.

Notice was given that the contract values and terms of the original GIC

had been adjusted down as required by the Rehab Plan. The Plans were

advised that there was no participating state guaranty association, and

thus no such source of makeup funds. The Plans' Committees elected to

opt out of the Rehab Plan, and the GIC was surrendered (see rep. 8,

below).

7. Under the Rehab Plan, a new insurance company, Aurora, was

created to receive the ELIC assets. ELIC contractholders, however, were

not forced to invest in the new company and could opt out. Upon opting

out, however, the ELIC contractholders were to receive only a portion

of their Accumulated Book Value, or a reduction of 31.5%. After that

reduction, further amounts were to be held back to cover potential

liabilities from ELIC indemnities in the sale of the assets and ongoing

litigation concerning allocation of the ELIC assets, leaving the

balance for the first opt out payment.

In addition to the first opt out payment, the Rehab Plan provides

for future potential payments as follows: (a) distributions from

enhancement trusts; and (b) release of holdbacks. These are described

below.

Three enhancement trusts were created at the ELIC sale to protect

certain ELIC assets that were not part of the sale, one for real

estate, one for below grade stocks and bonds, and one for ELIC rights

not transferred. All of these assets are to be liquidated by the

enhancement trusts over time and the proceeds distributed to the ELIC

contractholders. As required by the Rehab Plan, a specified amount was

held back to cover the indemnity and allocation contingencies.

The holdback amounts, if any remain, will be released to the

participants in the future if not used to cover the indemnities and

allocation litigation result. The Rehab Plan provided no assurance that

there would be distributions from enhancement trusts or releases of

holdbacks.

8. The opt out provision of the Rehab Plan was equivalent to a

repurchase of the GIC in return for the opt out payment. Having elected

to opt out, the Plans on March 27, 1994, received the first opt out

payment in the amount of $730,912. When added to the Interim Payment

(see rep. 6, above) of $288,528, the Plans have received a total of

$1,019,440 from ELIC. In addition, approximately $200,000 was held back

by ELIC (see rep. 7, above). When the opt out payment was received, the

Plans surrendered the GIC to Aurora.

9. Following the receipt of the first opt out payment and assuming

no future payments from the enhancement trusts or from the holdback,

each affected participant in the Plans will have lost approximately 42%

of his/her account balance invested in the GIC as of the Conservation

Date of April 11, 1991. The applicant represents that the realization

of these losses and uncertainties surrounding the ELIC situation have

caused substantial concern and anxiety among the Plans' participants.

In order to relieve the affected participants' concerns, to protect the

participants' accounts invested in the GIC, and to restore to the Plans

the ability to fulfill obligations with respect to Withdrawal Events

involving amounts invested in the GIC, Raytech desires to make up the

losses the participants have suffered as a result of the investment in

the GIC by way of the Makeup Payments. The Makeup Payments have been

calculated as follows:

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Hourly Salaried Total

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Accumulated Book Value on

Conservation Date............ $85,189 $1,689,590 $1,774,779

Interest Values Lost (April

11, 1991 to March 27, 1994).. 23,332 463,167 486,499

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Totals.................. 108,521 2,152,757 2,261,278

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Payments Made By ELIC......... 49,598 969,842 1,019,440

Makeup........................ 58,923 1,182,915 1,241,838

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Totals.................. 108,521 2,152,757 2,261,278

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The totals that should have been earned match the payments made by

ELIC (Interim Payment plus first opt out payment) plus the Makeup

Payment. (The totals will increase to account for interest at 6.19% up

to the actual Makeup Payment date.)

The Makeup Payments, which are shown in the above chart, have been

calculated in order to restore to the Plans the full Accumulated Book

Value of the GIC as of March 27, 1994 (the date of the first opt out

payment), which is $2,261,278. In addition, the applicant represents

that it will pay interest to the Plans up to the actual Makeup Payment

date at a rate of 6.19%, since funds invested in the GIC would have

been rolled over by the Trustee into the Hartford Insurance Company

GIC, having a guaranteed interest rate of 6.19% and expiring December

31, 1997.

10. Raytech is prepared and able to contribute the above-calculated

Makeup Payments plus interest to the Plans to eliminate the

participants' losses and future payment contingencies. The first opt

out payments (including the Interim Payment) and the Raytech Makeup

Payments will fully restore the participants' accounts. Immediately

following the granting of the exemption proposed herein and the

execution of a closing agreement with the Internal Revenue Service

pursuant to Rev. Proc. 92-16, the Makeup Payment will be contributed

directly to the Trustee, who is obligated under the terms of the Plans

to invest the contribution directly into the Guaranteed Interest Fund.

As future payments from the enhancement trusts or return of holdbacks

are received, the Trustee is to pay such amounts over to Raytech to

reimburse it for that portion of the Makeup Payments. The transaction

can be characterized as a non-interest bearing loan by Raytech to the

Plans requiring no security or collateralization.

11. The applicant represents that the losses suffered by the

affected participants are known numbers since the Rehab Plan has been

implemented and the payment has been made except for enhancement trusts

and holdbacks. In the absence of the Makeup Payments, such participants

stand to lose 42% of their account balances as of the Conservation Date

of April 11, 1991 and interest since such date totaling approximately

$1,242,000. To summarize, Raytech is proposing to make up the lost

amounts and to cover the amounts not paid due to the enhancement trusts

and the holdbacks under the Rehab Plan. Raytech is looking to recoup

such amounts only to the extent that they are subsequently paid under

the Rehab Plan.

12. In summary, the applicant represents that the proposed

transactions will satisfy the criteria contained in section 408(a) of

the Act because: (a) all terms of the transactions will be no less

favorable to the Plans than those which the Plans could obtain in an

arm's-length transaction with an unrelated party; (b) no interest and/

or expenses will be paid by the plans; (c) the Makeup Payments will be

made only in lieu of payments due from ELIC with respect to the

accumulated book value of the GIC at the time of the Makeup Payments;

(d) the Repayments are restricted to the GIC Proceeds; (e) the

Repayments will not exceed the total amount of the Makeup Payments; and

(f) the Repayments are waived to the extent the Makeup Payments exceed

the GIC Proceeds.

FOR FURTHER INFORMATION CONTACT: Gary H. Lefkowitz of the Department,

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

The Bally Manufacturing Corporation, Bally's Employee Savings Trust for

Administrative, Employees, et al. (the Plans), Located in Chicago, IL

[Application Nos. D-9646 and D-9647]

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), 406 (b)(1) and (b)(2)

of the Act and the sanctions resulting from the application of section

4975 of the Code, by reason of section 4975(c)(1) (A) through (E) of

the Code shall not apply to (1) the proposed advance of funds (the

Advances) to the master trust which was established to hold the assets

of the Plans (the Master Trust) by Bally Manufacturing Corporation (the

Employer), a party in interest with respect to the Plans and the Master

Trust, and (2) the Master Trust's potential repayment of the Advances

upon the receipt by the Master Trust of payments under two guaranteed

investment contracts (the GICs) issued by Executive Life Insurance

Company (Executive Life); provided the following conditions are

satisfied:

(A) No interest or expenses are paid by the Plans in connection

with the proposed transaction;

(B) The Advances will be repaid only out of amounts paid to the

Master Trust by Executive Life, its successors, or any other

responsible third party; and

(C) Repayment of the Advances is waived with respect to the amount

by which the Advances exceed GIC proceeds.

Summary of Facts and Representations

1. The Employer is a Delaware Corporation with its principal place

of business located in Chicago, Illinois. The Plans are all defined

contribution plans. The estimated number of participants in each of the

Plans as of December 31, 1993 is:

a. Bally's Employee Savings Trust for Administrative Employees: 729

b. Bally's Employees Savings Trust for Club Employees: 4,775

c. Bally's Grand, Inc. Contributory Savings Plan: 1,269

d. Bally's Grand (GNOC Corp.) Retirement Savings Voluntary

Participation Plan: 1,164

e. The Amended and Restated Bally's Park Place, Inc. Profit Sharing

Plan: 2,162

2. The assets of all five Plans are held in the Master Trust. Each

Plan holds units of participation representing an undivided interest in

the assets of the Master Trust. As of December 31, 1993, the total

amount of Plan assets held in the Master Trust was approximately

$95,000,000. The terms of the Plans permit participants to direct the

investment of their accounts under the Plans. Each of the Plans

provides its participants the option of investing in any of six mutual

funds managed by Fidelity Management and Research Company, including

the Interest Income Fund. The GICs, which were acquired directly by the

Master Trust, are considered part of the Interest Income Fund. The

Interest Income Fund has investments in several guaranteed investment

contracts. On April 4, 1989, the Master Trust acquired GIC A (#CGO 1318

A3A) from Executive Life for $4,000,000. GIC A provided for annual,

guaranteed interest at the rate of 10.13%, with a maturity date of

October 15, 1992. On July 3, 1989, the Master Trust acquired GIC B

(#CGO 1331 A3A) from Executive Life for $3,000,000. GIC B provided for

annual guaranteed interest at the rate of 9.01%, with a maturity date

of October 15, 1993.

3. On April 11, 1991, Executive Life was placed into

conservatorship by the Insurance Commissioner of the State of

California. The Employer represents that Executive Life ceased payments

on the GICs upon commencement of the conservatorship. The effect of the

conservatorship has been to freeze all assets invested in the GICs.

This freeze has prevented Plan participants from exercising their

rights under the Plans to request distributions, loans, withdrawals and

investment transfers with respect to amounts currently invested in the

GICs.7

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\7\The Department notes that the decisions to acquire and hold

the GICs are governed by the fiduciary responsibility requirements

of Part 4, Subtitle B, Title I of the Act. In this regard, the

Department is not herein proposing relief for any violations of Part

4 which may have arisen as a result of the acquisition and holding

of the GICs issued by Executive Life.

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4. The Employer proposes to make the Advances to the Master Trust

in a series of payments, pursuant to a written loan agreement (the

Agreement). The total amount of Advances will not exceed the aggregate

account balances of the Plans' participants attributable to the GICs as

of April 11, 1991,8 adjusted for interest, as follows: Commencing

on the date the Employer and the Internal Revenue Service enter into a

closing agreement pursuant to Internal Revenue Procedure 92-16,9

interest will be credited at the rate paid on the Interest Income

Fund.10 The Employer represents that it wishes to enter into the

proposed transaction in order to protect the Plan participants from the

effects of a prolonged rehabilitation process and from any potential

loss resulting from Executive Life's inability to meet its obligations

under the GICs. In this regard, the Employer represents that the Plans'

participants will benefit from the proposed transaction because the

Advances will ensure that the participants receive 100% of the

conservatorship date value of their accounts and such amounts will be

available as soon as approval is received from the Internal Revenue

Service and the Department.11 The Employer further represents that

the Advances will facilitate benefit distributions, loans, hardship

withdrawals and investment transfers which would not otherwise be

possible because of Executive Life's suspension of payments under the

GICs. The Employer also represents that the Advances will be non-

interest bearing and the Plan will not incur any expenses in connection

with the proposed transaction.

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\8\The balances as of April 11, 1991 consist of contributions

plus interest at the contract rate, less prior withdrawals.

\9\Internal Revenue Procedure 92-16 provides for a temporary

closing agreement program to settle certain tax liabilities that

arise out of transactions between an employer-sponsor and the trust

of a qualified defined contribution plan.

\1\0The Employer represents that the annualized rate of return

on the Interest Income Fund for the period from April 1, 1993

through March 31, 1994 was 7.35%.

\1\1The Department notes that the exemption, if granted, will

not affect the ability of a participant or beneficiary to bring a

civil action against Plan fiduciaries for breaches of section 404 of

ERISA in connection with any aspect of the GIC transactions.

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5. Repayment of the Advances under the Agreement is limited to

payments made to the Master Trust by or on behalf of Executive Life, or

its successor, or any other responsible third parties. No other assets

of the Master Trust will be available for repayment of the Advances. If

the payments by or on behalf of Executive Life are not sufficient to

fully repay the Advances, the Agreement provides that the Employer will

have no recourse against the Plans or the Master Trust, or against any

participants or beneficiaries of the Plans, for the unpaid amount. To

the extent the Master Trust receives GIC proceeds in excess of the

total amount of the Advances, such additional amounts will be retained

by the Master Trust and allocated among the accounts of the Plans'

participants.

6. In summary, the applicant represents that the proposed

transaction satisfies the criteria of section 408(a) of the Act

because: (1) The transaction will preserve the Plans' ability to timely

fund participants' benefits, including participant loans, hardship

withdrawals and participant-directed investment re-allocations; (2) The

Master Trust will not incur any expenses with respect to the

transaction; (3) Repayment of the Advances will be made only from

amounts paid to the Master Trust by Executive Life, its successor, or

any other third party; (4) If the payments by or on behalf of Executive

Life are not sufficient to fully repay the Advances, the Employer will

have no recourse against the Plans or the Master Trust, or against any

participants or beneficiaries of the Plans, for the unpaid amount; and

(5) Repayment of the Advances will be waived with respect to the amount

by which the Advances exceed the amount the Master Trust receives from

GIC proceeds.

FOR FURTHER INFORMATION CONTACT: Ms. Virginia J. Miller of the

Department, telephone (202) 219-8971. (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 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 accurately describe all

material terms of the transaction which is the subject of the

exemption. In the case of continuing exemption transactions, if any of

the material facts or representations described in the application

change after the exemption is granted, the exemption will cease to

apply as of the date of such change. In the event of any such change,

application for a new exemption may be made to the Department.

Signed at Washington, DC, this 22nd day of July 1994.

Ivan Strasfeld,

Director of Exemption Determinations, Pension and Welfare Benefits

Administration, Department of Labor.

[FR Doc. 94-18265 Filed 7-26-94; 8:45 am]

BILLING CODE 4510-29-P