Proposed Exemptions; Alucobond Technologies, Incorporated Employees' Savings Plan, et al.

DEPARTMENT OF LABOR

Pension and Welfare Benefits Administration

[Application No. D-9834, et al.]

Proposed Exemptions; Alucobond Technologies, Incorporated

Employees' Savings Plan, 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

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. 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 NW., 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 NW., 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.

Alucobond Technologies, Incorporated Employees' Savings Plan (the Plan)

Located in St. Louis, Missouri; Proposed Exemption

[Application No. D-9834]

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 interest-free loan to the

Plan (the Loan) by Alucobond Technologies, Incorporated (the Employer),

a party in interest with respect to the Plan, and (2) the Plan's

potential repayment of the Loan upon the receipt by the Plan of

payments under Guaranteed Investment Contract No. CG01285A3A (the GIC)

issued by Executive Life Insurance Company (Executive Life); provided

the following conditions are satisfied:

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

the proposed transaction;

(B) The Loan will be repaid only out of amounts paid to the Plan by

Executive Life, its successors, or any other responsible third party;

and

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

which the Loan exceeds GIC proceeds.

Summary of Facts and Representations

1. The Employer is a diversified manufacturer of aluminum composite

panels, rigid foam P.V.C. panels and polystyrene foamcore boards. The

Employer has offices and/or production sites in St. Louis, Missouri;

Benton, Kentucky and Richmond, Indiana. The Plan is a profit sharing

plan which includes a cash or deferred arrangement under section 401(k)

of the Code. As of December 31, 1993, the Plan had 93 participants and

total assets of approximately $1,098,635. Participants are currently

entitled to direct the investment of their account balances among seven

investment funds which are managed by Scudder Investor Services, Inc.

On February 12, 1988, prior to the implementation of participant

direction, The Boatmen's National Bank of St. Louis (the Bank),\1\ as

trustee for the Plan, made the decision to invest a portion of the

Plan's assets in a collective investment fund maintained by the Bank

and invested primarily in guaranteed investment contracts. The GIC is

held as the sole asset of sub-fund G-11 of the the collective

investment fund. The GIC provided a rate of return of 8.65% per annum

and a maturity date of March 1, 1993.

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\1\Boatmen's Trust Company (Boatmen's) succeeded The Boatmen's

National Bank of St. Louis as the Plan's trustee in 1990.

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

conservatorship by the Insurance Commissioner of the State of

California. The Employer represents that, pursuant to the

conservatorship, payouts under the terms of Executive Life's GICs were

suspended.\2\ In February, 1994, Boatmen's, in its capacity as Plan

trustee, elected to participate in the rehabilitation plan for

Executive Life. Although, through the rehabilitation process, the Plan

has received $147,386.00 from Executive Life, the amount of any

additional payments to be received over the next several years is

undetermined. Consequently, Boatmen's has frozen that portion of

participants' accounts which is attributable to the GIC. This freeze

has prevented Plan participants from exercising the rights they would

normally have under the Plan to request distributions and investment

transfers with respect to amounts currently invested in the GIC.\3\ The

Employer represents that the Loan would preserve the Plan's rights with

respect to the GIC, give participants and beneficiaries the ability to

exercise their right to request investment transfers, and provide

immediate liquidity which would facilitate benefit distributions. The

proposed Loan will be made in one lump-sum payment in the amount of the

maturity value\4\ of the GIC, plus post-maturity interest through the

date of the Loan, credited at the rate paid on the Collective Employee

Benefit Trust Fund ``S'';\5\, less any amounts previously received

pursuant to the rehabilitation process and the total amount of periodic

advances already made to the Plan. The Employer represents that the

Loan is non-interest bearing and the Plan will not incur any expenses

in connection with the transaction.

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\2\The Department notes that the decisions to acquire and hold

the GIC 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 GIC issued by Executive Life.

\3\Following the cessation of payments by Executive Life with

respect to the GIC, the Employer made the decision to make periodic

advances to the Plan to permit the Plan to make distributions to

participants and beneficiaries entitled to distributions as a

consequence of termination of employment. The applicant represents

that, as of November, 1994, the periodic advances to the Plan

totaled approximately $50,618.00. The applicant also represents that

the terms of those periodic advances satisfy the conditions of PTE

80-26 (45 FR 28545, April 29, 1980). This conditional class

exemption permits a party in interest to make an interest-free loan

to an employee benefit plan, and the repayment of such loan.

Specifically, the exemption states, in relevant part, that effective

January 1, 1975, the restrictions of section 406(a)(1)(B) and (D)

and section 406(b)(2) of the Act and the taxes imposed by section

4975(a) and (b) of the Code by reason of section 4975(c)(1)(B) and

(D) of the Code, shall not apply to the lending of money from a

party in interest to an employee benefit plan, nor to the repayment

of such loan in accordance with its terms, if no interest or other

fee is charged to the plan, the loan is unsecured, and the loan

proceeds are used only for the payment of ordinary operating

expenses of the plan, including the payment of benefits in

accordance with the terms of the plan.

In this proposed exemption the Department expresses no opinion

as to whether the periodic advances satisfy the provisions of PTE

80-26.

\4\The maturity value is defined as the total amount deposited

under the GIC, plus interest at the guaranteed interest rate,

through the date of maturity. The applicant represents that the

maturity value is $297,210.76.

\5\The Employer represents that the annualized rate of return on

the Collective Employee Benefit Trust Fund ``S'' for the period from

October 1, 1993 through September 30, 1994 was 4.0%. It is

represented that, this fund, an investment vehicle offered by

Boatmen's Trust Company, invests in a diversified portfolio of money

market instruments, such as U.S. Treasury Bills, certificates of

deposit, commercial paper, and demand notes, as well as other fixed-

rate and variable-rate fixed income securities.

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3. Repayment of the Loan is limited to payments made to the Plan by

or on behalf of Executive Life, or its successor, or any other

responsible third parties. No other assets of the Plan will be

available for repayment of the Loan. If the payments by or on behalf of

Executive Life are not sufficient to fully repay the Loan, the Employer

will have no recourse against the Plan, or against any participants or

beneficiaries of the Plan, for the unpaid amount. In the event that GIC

proceeds exceed the amount necessary to repay the Loan, the excess will

be distributed to the Plan for the benefit of participants and their

beneficiaries. The Employer represents that it will maintain records of

the proposed Loan for a period of seven years, and such records will be

open for inspection at all times by the Department or any Plan

participant.

4. 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 Plan's ability to allow

participant-directed investment re-allocations; (2) The Plan will not

incur any expenses with respect to the transaction; (3) Repayment of

the Loan will be made only from amounts paid to the Plan 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

Loan, the Employer will have no recourse against the Plan, or against

any participants or beneficiaries of the Plan, for the unpaid amount;

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

by which the Loan exceeds the amount the Plan receives from GIC

proceeds.

For Further Information Contact: Virginia J. Miller of the

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

Regency Marketing Corporation Restated Employees Profit Sharing Plan

and Trust (the Plan) Located in West Bloomfield, Michigan; Proposed

Exemption

[Application No. D-9763]

The Department is considering granting an exemption under 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 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

loan (the Loan) of $84,667 by the Plan to Frankenmuth Brewing Company

(Frankenmuth), a disqualified person with respect to the Plan.6

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\6\ Since Randall Heine and his wife, Paula Heine, are the only

participants in the Plan, there is no jurisdiction under Title I of

the Act pursuant to 29 CFR 2510.3-3(b). However, there is

jurisdiction under Title II of the Act pursuant to section 4975 of

the Code.

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This proposed exemption is conditioned upon the following

requirements:

(a) the terms of the Loan are at least as favorable to the Plan as

those obtainable in an arm's length transaction with an unrelated

party;

(b) the Loan does not exceed twenty-five percent of the assets of

the Plan at any time during the duration of the Loan;

(c) the Loan is secured by a first deed of trust on certain real

property (the Property) which has been appraised by an independent,

qualified appraiser to ensure that the fair market value of the

Property is at least 150 percent of the amount of the Loan;

(d) the fair market value of the Property remains at least equal to

150 percent of the outstanding balance of the Loan throughout the

duration of the Loan;

(e) the Plan trustees determine on behalf of the Plan that the Loan

is in the best interests of the Plan and protective of the Plan's

participants and beneficiaries; and

(f) the Plan trustees monitor compliance with the terms and

conditions of the Loan throughout the duration of the transaction,

taking any action necessary to safeguard the Plan's interest, including

foreclosure on the Property in the event of default.

Summary of Facts and Representations

1. Regency Marketing Corporation (Regency) established the Plan on

July 1, 1976. On February 1, 1986, the Plan was frozen due to the

dissolution of Regency. Regency was a Michigan corporation engaged as a

broker of dairy and other related products. As of June 30, 1993, the

Plan had total assets of $1,892,429. Randall Heine and his wife, Paula

Heine, are the only participants in the Plan. Mr. and Mrs. Heine are

the trustees of the Plan (the Trustees) and have sole investment

discretion with regard to the Plan's assets. The Trustees represent

that there will be no new participants in the Plan.

Mr. Heine is the majority shareholder of Frankenmuth, a Michigan

corporation with its principal place of business in Frankenmuth,

Michigan. Frankenmuth manufactures beer and ale both under its own

labels as well as under private labels.

2. The Trustees request an administrative exemption from the

Department to permit the Loan to Frankenmuth under the terms and

conditions described herein. Frankenmuth proposes to use the loan

proceeds towards purchasing the Property which will be used for

Frankenmuth's administrative offices.

3. The Loan will be in a principal amount of $84,667. The applicant

states that at no time will the amount of the Loan represent more than

twenty-five percent of the Plan's total assets. The Loan will be

secured by a first deed of trust on the Property, which consists of a

1,250 square foot improved commercial building and the underlying land.

The Property is located at 435 South Main Street, Frankenmuth,

Michigan. The deed of trust will be duly recorded in Saginaw County to

reflect the Plan's security interest in the Property. In addition,

Frankenmuth will insure the Property against casualty loss and

designate the Plan as the loss payee of such insurance.

4. The Loan will have a ten-year term and will be evidenced by a

promissory note (the Note). The Note will require Frankenmuth to make

monthly payments of principal and interest which will be fully

amortized over the ten-year term. Interest will accrue on the Loan at

11.5 percent per annum. The Plan will not be required to pay any

commissions, fees or other expenses in connection with the Loan.

As a condition of the proposed exemption, the terms and conditions

of the Loan must be at least as favorable to the Plan as those which

the Plan could obtain in dealing at arm's length with an unrelated

party. In this regard, NBD Bank, N.A. (NBD), an unrelated entity in

Troy, Michigan, states in a letter, dated September 22, 1994, that NBD

would make a secured loan of $84,667 for an initial term of five years

with a fifteen-year amortization schedule allowing for a balloon

payment at the end of the fifth year. At the end of the first five

years, NBD would approve a new five-year note with a ten-year

amortization schedule. At the end of the tenth year, NBD would then

approve a five-year note with a five-year amortization schedule.

Interest would accrue within a range of 9.25 percent to 11.5 percent

per annum, fixed or floating. In addition, NBD states that it would

charge Frankenmuth a loan fee of one percent or $846. Accordingly, the

applicants represent that Frankenmuth will pay a loan fee of $846 to

the Plan at the inception of the Loan.

5. The Property was appraised by Lewis H. Weiss of Weiss Appraisal

Service (Weiss), an appraisal firm located in Frankenmuth, Michigan.

Mr. Weiss is a licensed real estate appraiser in Michigan and has ten

years of experience appraising all types of property. Mr. Weiss

represents that both he and Weiss are independent of, and unrelated to,

Frankenmuth and the Trustees.

Mr. Weiss placed a fair market value of $127,000 as of August 23,

1994. Mr. Weiss utilized the market data approach of valuation by using

comparable sales of commercial buildings located on the same street as

the Property.

6. The Trustees state that the terms of the Loan compare favorably

with the terms of similar transactions between untreated parties and

would be a better than arm's length transaction as evidenced by the

terms offered by NBD (see Item #5 above). The Trustees represent, that

from the Plan's perspective, the terms of the Loan are better than the

terms offered by NBD because the Loan allows the Plan to receive higher

monthly payments at an interest rate of 11.5 percent over a ten- year

period rather than at a fixed or floating rate between 9.25 and 11.5

percent over a fifteen-year period. The Trustees represent that they

believe that the Loan is in the best interests of the Plan and its

participants and beneficiaries as an investment for the Plan's

portfolio. The Trustees further represent that they will monitor the

Loan throughout its entire duration and will take any appropriate

action necessary to protect the interests of the Plan and its

participants and beneficiaries, including a foreclosure on the Property

in the event of default. The Trustees will monitor the Property to

ensure that the Loan remains secured by collateral worth at least 150

percent of the Loan at all times.

7. In summary, the applicant represents that the proposed

transaction will satisfy the statutory criteria for an exemption under

section 408(a) of the Act because:

(a) the terms of the Loan will be at least as favorable to the Plan

as those obtainable in an arm's length transaction with an unrelated

party;

(b) the Loan will not exceed twenty-five percent of the assets of

the Plan at any time during the duration of the Loan;

(c) the Loan will be secured by a first deed of trust on certain

real property (the Property) which has been appraised by an

independent, qualified appraiser to ensure that the fair market value

of the Property is at least 150 percent of the amount of the Loan;

(d) the fair market value of the Property will remain at least

equal to 150 percent of the outstanding balance of the Loan throughout

the duration of the Loan;

(e) the Trustees have determined on behalf of the Plan that the

Loan is in the best interest of the Plan and protective of the Plan's

participants and beneficiaries; and

(f) the Trustees will monitor compliance with the terms and

conditions of the Loan throughout the duration of the transaction,

taking any action necessary to safeguard the Plan's interest, including

foreclosure on the Property in the event of default.

Notice to Interested Persons

Since Mr. and Mrs. Heine are the only participants in the Plan, it

has been determined that there is no need to distribute the notice of

proposed exemption to interested persons. Comments are due within

thirty days after publication of this notice in the Federal Register.

For Further Information Contact: Kathryn Parr of the Department,

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

Clarence E. Coker, Jr. and the Clarendon Family Practice, PA Employee

Retirement Plan (the Plan) Located in Manning, South Carolina; Proposed

Exemption

[Application No. D-9736]

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 C.F.R. 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 the proposed sale of approximately eight acres

of unimproved land (the Land) by the Plan to Dr. Clarence E. Coker,

Jr., (Dr. Coker), a party in interest with respect to the Plan;

provided that the following conditions are satisfied:

(a) the proposed sale will be a one-time cash transaction;

(b) the Plan will receive the higher of: (1) the original

acquisition cost7; or (2) the current fair market value plus a

certain premium related to the adjacency of the Land to other real

property owned by Dr. Coker, established at the time of the sale by an

independent qualified appraiser; and

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\7\The original acquisition cost is determined as follows:

(original purchase price + aggregate real estate taxes) - aggregate

rental income = original acquisition cost.

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(c) the Plan will pay no expenses associated with the sale.

Summary of Facts and Representations

1. The Plan is a defined contribution plan that was established

January 1, 1974. The Plan has 13 participants, and as of December 31,

1993, the Plan's total assets were $755,525.96. The sponsor of the Plan

is Clarendon Family Practice, PA (the Employer), which is a South

Carolina subchapter ``C'' corporation engaged in family practice

medicine. The Plan's trustee is Dr. Coker who is also the sole

shareholder of the Employer.

2. On May 18, 1982, the Plan purchased the Land for $41,700 from

Marian K. Thames, an unrelated third party in a one-time cash

transaction. The applicant represents that at the time of initial

acquisition, the Land represented 19.9% of the Plan's total assets. The

Land consists of 8.34 acres of vacant land and is located adjacent to

other property owned by Dr. Coker, individually. The applicant

represents that since 1982 the Land has been rented for approximately

$400 a year to W. D. Harrington, a neighboring farmer who is unrelated

to the Plan and the Employer, as grazing land for animals. The

aggregate rental income received by the Plan for the period 1982-1994

is $5,200. It is represented that the Land has not been used by a party

in interest since it was originally acquired by the Plan. Furthermore,

the Land is not encumbered by any debt.

3. Dr. Coker in his trustee capacity, upon the advise of a certain

certified public accountant, made the original decision to acquire the

Land as a long-term Plan investment.8 With respect to the Land,

the aggregate real estate taxes for the period 1983-1993 were $153.45.

In this regard, the original acquisition cost (the Original Acquisition

Cost) to the Plan for the Land is $36,653.45. The Original Acquisition

Cost was determined as follows $41,700 (original purchase price) +

$153.45 (aggregate real estate taxes) - $5,200 (aggregate rental

income) = $36,653.45.

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\8\The Department expresses no opinion as to whether the Plan's

acquisition and holding of the Land violated any provision of part 4

of title I of the Act.

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4. The Land was appraised on February 11, 1994 (the Appraisal) by

W. Burke Watson, Jr., an independent real estate appraiser certified in

the State of South Carolina (Mr. Watson). Mr. Watson relied on the

direct sales comparison method and estimated that as of February 11,

1994, the fair market value of the Land was $12,500. On July 28, 1994,

in an update to the Appraisal, Mr. Burke stated that adjacency of the

Land to other property owned by Dr. Coker merits a premium (the

Premium) above the fair market value of approximately $500 per acre,

which yields a new purchase price of $17,680 to Dr. Coker in this

transaction.

5. Dr. Coker proposes to purchase the Land from the Plan in a one-

time cash transaction. It is represented that as of December 31, 1993,

the Land represented 1.7 percent of the Plan's assets. The applicant

represents that the Land has been depreciating steadily over the years,

but that this depreciation became evident to Dr. Coker in 1987. As

such, after conferring with the Plan's consultants and administrators

in 1991, Dr. Coker decided that he should sell the Land because of its

steady depreciation and because of its illiquidity. Accordingly, the

Land has been listed for sale with an independent real estate broker

from October 1991 to January 1992, but there was no willing buyer.

Therefore, it is represented that the proposed transaction is in the

best interest and protective of the Plan because the transaction will

divest the Plan of an asset that has greatly depreciated in value since

original acquisition, and will enable the Plan to invest in vehicles

with a higher return. The transaction is protective of the Plan because

as a result of the sale the Plan will receive the higher of: a) the

Original Acquisition Cost; or b) the current fair market value plus the

Premium as established at the time of the sale by an independent

qualified appraiser. Furthermore, the applicant represents that any

amounts received by the Plan as a result of the proposed transaction,

which are in excess of the fair market value of the Land will be

treated as a contribution to the Plan, but that this contribution will

not exceed limitations of section 415 of the Internal Revenue Code.

6. 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:

(a) the proposed sale will be a one-time cash transaction;

(b) the Plan will receive the higher of: 1) the Original

Acquisition Cost; or 2) the current fair market value plus the Premium

as established at the time of the sale by an independent qualified

appraiser; and

(c) the Plan will pay no expenses associated with the sale.

Tax Consequences of Transaction

The Department of Treasury has determined that if a transaction

between a qualified employee benefit plan and its sponsoring employer

(or an affiliate thereof) results in the plan either paying less or

receiving more than fair market value, such excess may be considered to

be a contribution by the sponsoring employer to the plan, and therefore

must be examined under the applicable provisions of the Internal

Revenue Code, including sections 401(a)(4), 404 and 415.

For Further Information Contact: Ekaterina A. Uzlyan of the Department

at (202) 219-8883. (This is not a toll-free number.)

American Express Incentive Savings Plan (the Plan) Located in New York,

New York; Proposed Exemption

[Application No. D-9813]

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 C.F.R. Part

2570, Subpart B (55 F.R. 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 sections 4975(c)(1) (A)

through (E) of the Code, shall not apply to (1) the proposed extensions

of credit (the Loans) to the Plan by American Express Company (the

Employer), the sponsor of the Plan with respect to two guaranteed

investment contracts (the GICs) issued by Confederation Life Insurance

Company (Confederation); (2) the Plan's potential repayment of the

Loans; and (3) the potential purchase of the GICs from the Plan by the

Employer for cash; provided the following conditions are satisfied:

(A) All terms and conditions of such transactions are no less

favorable to the Plan than those which the Plan could obtain in arm's-

length transactions with unrelated parties;

(B) No interest and/or expenses are paid by the Plan in connection

with the transactions;

(C) The proceeds of the Loans are used solely in lieu of payments

due from Confederation with respect to the GICs;

(D) Repayment of the Loans will be restricted to the GIC Proceeds,

defined as the cash proceeds obtained by the Plan from or on behalf of

Confederation with respect to the GICs;

(E) Repayment of the Loans will be waived to the extent that the

Loans exceed the GIC Proceeds; and

(F) In any sale of the GICs to the Employer, the Plan will receive

a purchase price which is no less than the fair market value of the

GICs as of the sale date, and no less than the GICs' accumulated book

value, defined as the total principal deposits plus accrued interest at

the rates guaranteed by the GICs, less previous withdrawals and any

Loans made pursuant to this exemption, as of the sale date.

Summary of Facts and Representations

1. The Plan is a defined contribution 401(k) plan which provides

for individual participant accounts (the Accounts) and participant-

directed investment of the Accounts. The Plan is sponsored by American

Express Company (the Employer), a New York public corporation engaged

in diversified travel and financial services. The trustee of the Plan

is the IDS Trust Company (the Trustee), a wholly-owned subsidiary of

IDS Financial Corporation, which is wholly owned by the Employer. The

Accounts are invested at the directions of individual Plan participants

among nine investment funds, one of which is the ISP Income Fund (the

Income Fund), which invests in, among other things, guaranteed

investment contracts issued by insurance companies.

2. Among the assets in the Income Fund are two guaranteed

investment contracts (the GICs) issued by Confederation Life Insurance

Company (Confederation), a Canadian corporation doing business in the

United States through branches in Michigan and Georgia. Contract #62516

was issued to the Plan by Confederation effective June 28, 1991, upon

an initial principal deposit of $10 million, and it provides for simple

annual interest at the rate of 8.72 percent, with a maturity date of

June 27, 1996. Contract #62764 was issued effective June 1, 1993 upon

an initial principal deposit of $5 million and it provides for simple

annual interest at the rate of 6.06 percent, with a maturity date of

June 30, 1998. Both GICs are single-deposit non-participating contracts

which allow the Plan to make benefit-responsive withdrawals (the

Withdrawals) to fund benefit payments, investment fund transfers,

hardship withdrawals and participant loans (collectively, the

Withdrawal Events). The terms of the GICs provide that interest at the

interest rates guaranteed by each GIC (the Contract Rates) will be

credited to the Plan daily, and if the amount of interest earned

exceeds the amount of Withdrawals, the difference will be paid annually

(the Interest Payments) on the anniversary of a date specified by each

GIC for such Interest Payments. Conversely, if the amount of

Withdrawals exceeds the amount of interest earned during the year, no

anniversary Interest Payment is made. Upon each GIC's maturity date,

Confederation is obligated to make a final cash payment to the Plan

(the Maturity Payment) in the amount of the GIC's principal plus

interest at the Contract Rate, less previous Withdrawals (the Maturity

Value).

3. The Employer represents that on August 11, 1994, the Canadian

insurance regulatory authorities placed Confederation into a

liquidation and winding-up process, and on August 12, 1994, the

insurance authorities of the State of Michigan commenced legal action

to place the U.S. operations of Confederation into a rehabilitation

proceeding. As a result of these actions, the Withdrawals and Interest

Payments with respect to the GICs have been suspended.9 The

Employer represents that it cannot be determined accurately whether, to

what extent, or at what time the Withdrawals and Interest Payments will

be resumed. The Employer desires to alleviate the Plan's participants

of the risks associated with continued investment in the GICs, to

prevent any losses of the Income Fund's investments in the GIC, and to

provide the Plan with the cash which otherwise would have been provided

by the Withdrawals and Interest Payments. Accordingly, the Employer

proposes to make the Loans to the Plan from time to time in the amounts

due the Plan under the GICs as Withdrawals and Interest Payments. Upon

the stated maturity date of each GIC, the Employer intends either (1)

to purchase each GIC from the Plan (the Sale), or, alternatively, (2)

to make a Loan to the Plan in the amount of the GIC's Maturity Value,

depending upon the circumstances prevailing at such time. The Employer

is requesting an exemption to permit these transactions under the terms

and conditions described herein.

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\9\ 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 proposed

exemption, the Department is not proposing relief for any violations

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

holding of the GICs.

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3. The Loans and their repayment, and any potential sale of the

GICs to the Employer will be made pursuant to a written agreement (the

Agreement) between the Trustee and the Employer.

The Loans: Under the Agreement, the Employer agrees to make the

Loans over the remaining terms of the GICs at such times and in such

amounts as required to enable the Income Fund to fully fund the

Withdrawal Events and to fully realize the Interest Payments, in lieu

of the same amounts which otherwise would be paid to the Plan by

Confederation as Withdrawals and Interest Payments. Accordingly, the

amount of each Loan will be determined on the basis of the GIC's

principal plus interest at the Contract Rate, less previous

Withdrawals, as of the date of the Loan. Each Loan will also be reduced

by any amounts actually received by the Plan, with respect to the

particular Withdrawal Event or Interest Payment due, from Confederation

or any other party making payment with respect to Confederation's

obligations under the GICs. In addition to the Loans in lieu of

Withdrawals and Interest Payments, the Agreement authorizes the

Employer, as an alternative to purchasing the GICs (as described below

in section 4) to make a final Loan with respect to each GIC upon the

GIC's Maturity Date in the amount of the GIC's Maturity Value. Any

final Loan upon the maturity of each GIC will be made within thirty

days of the Maturity Date in the amount of the GIC's Maturity Value

plus post-maturity interest as described in section 4 below. The

Employer will receive no interest or fees for any of the Loans, and the

Plan will incur no expenses related to the Loans.

The Repayments: The Agreement provides that the repayments of the

Loans (the Repayments) with respect to each GIC are restricted to the

cash amounts, if any, which the Plan receives with respect to the GIC

from Confederation, any state insurance guaranty funds, any successor

to Confederation, or any other third party making payments with respect

to Confederation's obligations under the GICs (collectively, the GIC

Proceeds). The GIC Proceeds available to make the Repayments also

include, in the event of any purchase of either GIC, as described

below, the purchase price of the GIC (the Purchase Price). In this

regard, in the event of any such sale of a GIC, Repayments of Loans

with respect to that GIC will be accomplished by crediting the total

amount of outstanding Loans against the Purchase Price. In any event,

to the extent the Loans exceed total GIC Proceeds, the Repayments will

be waived.

4. With respect to the maturity of each GIC, the Agreement enables

the Employer to retain the flexibility to decide upon each GIC's

maturity whether to make a final Loan in the amount of the Maturity

Value, if not paid when due by or on behalf of Confederation, or to

purchase the GIC from the Plan. The Employer represents that it is

unclear under current conditions whether the purchase of the two GICs

by the Employer would jeopardize the ability of the Plan and/or the

Employer to successfully assert rights to protection under the

insurance guaranty fund laws of the various states. The Employer is

concerned that, if the two GICs are transferred from the Plan prior to

resolution of issues related to guaranty fund protection, various state

guaranty fund associations may deny the full range of protection which

would have been conferred on the Plan and its participants through such

insurance guaranty laws. For these reasons, the Employer would like to

wait until the maturity date of each GIC to determine whether to

purchase the GIC from the Plan or to make a Loan to the Plan in the

amount of the GIC's Maturity Value. The Agreement requires the Employer

to make its decision with respect to the maturity of each GIC, and to

consummate the Loan or purchase transaction, within thirty business

days after the maturity date of each GIC, during which the GIC's

Maturity Value will earn interest (Post-Maturity Interest) at the

prevailing 30-day U.S. Treasury bill rate, from the date of maturity to

the date of the loan or purchase. In the event the Employer chooses to

purchase either of the GICs, the purchase price will be cash in the

amount of the GIC's Maturity Value plus Post-Maturity Interest. The

Plan will not incur any expenses related to any sale of the GICs. In

the event the Employer chooses to make a final Loan upon the Maturity

of each GIC, each Loan will be in the amount of the GIC's Maturity

Value plus Post-Maturity Interest.

5. In summary, the Employer represents that the proposed

transactions satisfy the criteria of section 408(a) of the Act for the

following reasons:

(1) The transactions will enable the Plan to recover all amounts

due with respect to the GICs;

(2) The Loans will enable the Plan to resume the ability to fund

benefit payments, participant loans, hardship withdrawals, and

investment fund transfers within the Plan;

(3) Repayment of the Loans will be restricted to the GIC Proceeds;

(4) The Repayments will be waived to the extent the Loans exceed

the GIC Proceeds; and

(5) No interest and/or expenses will be incurred by the Plan with

respect to any of the transactions.

For further information contact: Ron Willett of the Department,

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

Bermo, Inc. Profit Sharing Plan and Trust (the Plan), Located in Circle

Pines, Minnesota; Proposed Exemption

[Application No. D-9826]

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 the proposed series of loans (the Loans),

originated within a five year period, by the Plan to Bermo, Inc. (the

Employer), a party in interest with respect to the Plan, provided that

the following conditions are met:

(a) The total amount of outstanding Loans shall not exceed 25

percent of the Plan's total assets at any time during the transaction;

(b) All terms and conditions of the Loans are at least as favorable

to the Plan as those which the Plan could obtain in an arm's length

transaction with an unrelated third party;

(c) Each Loan will be: (1) for a maximum term of forty-eight months

fully amortized and payable in equal monthly installments of principal

and interest, (2) the Loan proceeds shall be used exclusively by the

Employer to purchase new equipment (the Equipment) used by the Employer

in the course of its business, (3) collateralized by the Equipment and

other assets owned by the Employer such that at all times each Loan

will be collateralized in an amount equal to at least 200% of the

outstanding balance of such Loan, (4) equal to no more than 80% of the

purchase price of the Equipment financed, and (5) guaranteed personally

by Fred Berdass, the principal shareholder of the Employer.

(d) The value of the collateral offered by the Employer will be

determined by a qualified independent appraiser;

(e) Prior to the granting of each Loan, an independent qualified

fiduciary determines, on behalf of the Plan, that each Loan is feasible

and in the best interests of the Plan and protective of the Plan and

its participants and beneficiaries;

(f) The independent fiduciary will conduct a review of the terms

and conditions of the exemption and the Loans, including the applicable

interest rate, the sufficiency of the collateral, the financial

condition of the Employer and compliance with the 25 percent of the

Plan asset maximum total Loan amount prior to approving each

disbursement under the Loan agreement;

(g) The independent fiduciary will monitor the terms and conditions

of the exemption and the loans; and

(h) The independent fiduciary is authorized to take whatever action

is appropriate to protect the Plan's rights throughout the duration of

the exemption and throughout the duration of any Loan granted pursuant

to this exemption.

Temporary Nature of Exemption

The exemption, if granted, is temporary and will expire five years

from the date of the publication in the Federal Register of the Final

Grant of the proposed exemption. Subsequent to the expiration of this

exemption, the Plan may hold any Loans originated during this five year

period until the Loans are repaid or otherwise terminated.

Summary of Facts and Representations

1. The Plan is defined contribution plan having 63 participants and

total assets of $4,621,936 as of September 39, 1995. Richfield Bank &

Trust Company of Richfield, Minnesota serves as the Plan's trustee (the

Trustee).

2. The Employer is a closely held corporation engaged in the metal-

stamping business. The shareholders of the Employer are Fred P. Berdass

and members of his family. In the regular course of its business, the

Employer purchases equipment for its operations. The Employer maintains

its principal place of business in Circle Pines, Minnesota.

3. The Department granted two previous exemptions (Prohibited

Transaction Exemption (PTE) 82-9, 47 FR 2431, January 15, 1982 and PTE

87-77, 52 FR 29905, August 12, 1987) to permit loans (the Exempt Loans)

by the Plan to the Employer. Under the terms of the exemption, the Plan

could make loans on a recurring basis to the Employer for a period of

five years. The proceeds from the Exempt Loans were used by the

Employer for the purchases of machinery and equipment. Each Exempt Loan

was collateralized by specific equipment and assets owned by the

Employer. The maximum length of any Exempt Loan was 48 months, and the

interest rate was one percent above the prime rate. The balance on

total Exempt Loans did not exceed 25 percent of the fair market value

of the Plan's assets. An independent fiduciary acted on behalf of the

Plan and certified that each Exempt Loan was an appropriate investment

for the Plan.

The Trustee has confirmed that all payments of principal Loans were

received by the Trustee on a timely basis and each Exempt Loan was paid

in full in accordance with the terms of PTE 82-9 and PTE 87-77.

4. The Plan now proposes to make a series of Loans over a five year

period to the Employer. The proceeds from the Loans will be used by the

Employer to purchase the Equipment. Each Loan will be collateralized by

a promissory note and security agreement which provide the Plan with a

first lien on the Equipment. In addition, the Loan will be

collateralized by specific equipment or assets which are owned by the

Employer. At all times each Loan will be collateralized in an amount at

least equal to 200 percent of the outstanding balance of such loan. The

amount of each Loan will not exceed 80% of the purchase price of the

Equipment excluding tax and transportation. In addition, Mr. Berdass

will personally guarantee each Loan.

The maximum length of any Loan will be 48 months and will have an

interest rate of at least one percent above the prevailing prime rate

of interest of the Trustee which is the prevailing interest rate earned

on similar loans made by the Trustee to unrelated third parties. The

outstanding Loan balance will not exceed 25 percent of the market value

of the assets of the Plan. The Employer will adequately insure the

Equipment and all other collateral against fire and all other relevant

hazards with the Plan being named beneficiary of the insurance.

4. Lake Elmo Bank, of Lake Elmo, Minnesota (the Bank) will serve as

the independent fiduciary with respect to the proposed Loans. The Bank

represents that it is qualified to act as an independent fiduciary with

respect to the Loan transactions and that is understands that its

responsibility as an ERISA fiduciary. In addition, the Bank represents

that it has no pre-existing relationship with the Employer nor with Mr.

Berdass, and that the income derived from the Employer and related

parties, including the income derived from serving in the capacity of

independent fiduciary will not exceed 1% of the Bank's gross income.

5. In its capacity as independent fiduciary, the Bank represents

that it will determine the appropriateness and suitability of each Loan

prior to the consummation of each Loan transaction. In this regard, the

Bank will review the independent appraisals of the Equipment and the

assets pledged to secure the Loans and confirm the sufficiency of such

appraisals. The Bank states that the Loans are appropriate investments

for the Plan and are in the best interests of the Plan's participants

and beneficiaries and are protective of their interests. The Bank

further states that the terms of the Loans are at least equal to terms

available between the Plan and an unrelated third party. The Bank

represents that it will enforce the terms of the Loan including, but

not limited to, making demand for timely payment, bringing suit or

other appropriate process against the Employer in the event of default

and monitoring the performance of each Loan. In addition, the Bank has

examined Mr. Berdass's personal financial statements and is assured

that as guarantor of the Loans, Mr. Berdass will continue to have the

financial stability to personally assure the repayment of all Loans

granted pursuant to the proposed exemption.

6. In summary, the applicant represents that the proposed

transaction meets the statutory criteria for an exemption under section

408(a) of the Act because: (a) the rate of return to the Plan on the

Loans will equal the prevailing rate earned on similar loans made by

the Trustee; (b) the Plan's interests with respect to the Loans will be

represented by an independent fiduciary who will monitor the Loans as

well as the conditions of the exemption, and will take all appropriate

actions necessary to safeguard the best interests of the Plan; (c) the

Plan's independent fiduciary has reviewed the terms and conditions of

the proposed exemption and has determined that the Loans are in the

best interest of the Plan's participants and beneficiaries; (d) The

independent fiduciary will review and approve each Loan prior to making

any disbursements; (e) the Loans will at all times be secured by the

Equipment and other assets of the Employer which will be valued at not

less than 200% of the Loan; (f) the aggregate balance of the

outstanding loans will not exceed 25% of the value of the Plan's

assets; and (g) the proposed exemption will be of a temporary nature,

not to exceed five years.

For Further Information Contact: Allison K. Padams 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 that each application

accurately describes all material terms of the transaction which is the

subject of the exemption.

Signed at Washington, DC, this 14th day of December, 1994.

Ivan Strasfeld,

Director of Exemption Determinations, Pension and Welfare Benefits

Administration, U.S. Department of Labor.

[FR Doc. 94-31086 Filed 12-16-94; 8:45 am]

BILLING CODE 4510-29-P