Grant of Individual Exemptions; Westinghouse Pension Plan, et al.

DEPARTMENT OF LABOR

Pension and Welfare Benefits Administration

[Prohibited Transaction Exemption 95-46;

Exemption Application No. D-09519, et al.]

Grant of Individual Exemptions; Westinghouse Pension Plan, et al.

AGENCY: Pension and Welfare Benefits Administration, Labor.

ACTION: Grant of individual exemptions.

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SUMMARY: This document contains exemptions issued by the Department of

Labor (the Department) from certain of the prohibited transaction

restrictions of the Employee Retirement Income Security Act of 1974

(the Act) and/or the Internal Revenue Code of 1986 (the Code).

Notices were published in the Federal Register of the pendency

before the Department of proposals to grant such exemptions. The

notices set forth a summary of facts and representations contained in

each application for exemption and referred interested persons to the

respective applications for a complete statement of the facts and

representations. The applications have been available for public

inspection at the Department in Washington, D.C. The notices also

invited interested persons to submit comments on the requested

exemptions to the Department. In addition the notices stated that any

interested person might submit a written request that a public hearing

be held (where appropriate). The applicants have represented that they

have complied with the requirements of the notification to interested

persons. No public comments and no requests for a hearing, unless

otherwise stated, were received by the Department.

The notices of proposed exemption were issued and the exemptions

are being granted solely by the Department because, 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 proposed to the Secretary

of Labor.

Statutory Findings

In accordance with section 408(a) of the Act and/or section

4975(c)(2) of the Code and the procedures set forth in 29 CFR Part

2570, Subpart B (55 FR 32836, 32847, August 10, 1990) and based upon

the entire record, the Department makes the following findings:

(a) The exemptions are administratively feasible;

(b) They are in the interests of the plans and their participants

and beneficiaries; and

(c) They are protective of the rights of the participants and

beneficiaries of the plans.

Westinghouse Pension Plan (the Plan)

Located in Pittsburgh, Pennsylvania [Prohibited Transaction

Exemption 95-46; Application No. D-09519]

Exemption

The restrictions of sections 406(a)(1)(A) through (D), 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 contribution of certain

securities (the Securities) to the Plan on September 14, 1993 and

October 29, 1993 by Westinghouse Electric Corporation (WEC), the Plan's

sponsor and as such a party in interest with respect to the Plan,

provided the following conditions are met:

(a) The Securities were valued at an amount which was no greater

than their fair market value at the time of contribution, as

established by an independent, qualified appraiser;

(b) The terms and conditions of the contributions were at least as

favorable to the Plan as terms and conditions which the Plan could have

obtained in a purchase of similar securities from an unrelated party;

[[Page 32993]]

(c) The Plan did not pay any commissions or other expenses with

respect to the contributions;

(d) The fair market value of the Securities represents at all times

an amount of the Plan's total assets which is consistent with the

Plan's investment guidelines and objectives;

(e) Additional Plan assets are not used to purchase any new

securities which are considered ``alternative investments'' to the

extent that such purchases, when added to the outstanding fair market

value of the Securities owned by the Plan, would cause more than 5.2

percent of the Plan's total assets to be invested in ``alternative

investments'' (other than as may be occasioned merely by an increase in

value);\1\

1Alternative investments generally are relatively illiquid

investments in an asset class other than traditional classes of

cash, stock, fixed income securities and real estate.

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(f) Mellon Bank N.A. (Mellon), as an independent, qualified

fiduciary for the Plan, determined that each contribution of the

Securities to the Plan was in the best interests and protective of the

Plan and its participants and beneficiaries at the time of the

transactions;

(g) Mellon monitored each contribution made to the Plan and took

all appropriate actions necessary to protect the interests of the Plan

and its participants and beneficiaries;

(h) Mellon monitors the performance of the Securities as an

investment for the Plan and takes whatever action is necessary to

protect the interests of the Plan and its participants and

beneficiaries;

(i) On the date on which the Plan no longer holds any of the

Securities contributed by WEC on September 14 and October 29, 1993 (the

Exercise Date), WEC shall contribute to the Plan the difference between

the following:

(1) the sum of (i) the sales proceeds received by the Plan on the

disposition of all of the Securities, plus (ii) interest accrued and

interest and dividends received on the Securities; and

(2) the aggregate value of the Securities on the date that they

were originally contributed to the Plan (i.e. $188,882,694), plus any

adjustments to such aggregate value requested by Mellon to reflect

changes in the Consumer Price Index (CPI) during the period that the

Securities were held by the Plan, upon demand by Mellon as the Plan's

independent fiduciary under the terms of a ``makewhole agreement'' with

the Plan (the Makewhole Agreement). Mellon shall have sole authority to

determine the amount due to the Plan under the Makewhole Agreement (the

Makewhole Amount) at the time of the transaction;2

2The Department notes that any decision made by Mellon as the

Plan's independent fiduciary with respect to the exercise of the

Plan's rights under the Makewhole Agreement shall be fully subject

to the fiduciary responsibility provisions of the Act. However, by

granting this exemption, the Department is not expressing an opinion

regarding whether any actions taken by Mellon would be consistent

with its fiduciary obligations under Part 4 of Title I of the Act.

In this regard, section 404(a) of the Act requires, among other

things, that a plan fiduciary act prudently, solely in the interest

of the plan's participants and beneficiaries, and for the exclusive

purpose of providing benefits to participants and beneficiaries when

making decisions on behalf of a plan.

(j) On December 30, 1994, WEC made a cash contribution to the Plan

in the amount of $25 million to support any amounts that may become due

under the Makewhole Agreement, provided that this cash contribution is

held as a separate credit balance in the Plan's funding standard

account until the termination date of the Makewhole Agreement (as

amended pursuant to paragraph (i) above) and is not used to offset any

other funding obligation owed by WEC to the Plan until such date.

Mellon, as the Plan's independent fiduciary, shall be responsible for

investing the $25 million and ensuring that the Plan receives all

interest and other income earned on the $25 million; and

(l) Mellon monitors the compliance by all parties with the terms

and conditions of the exemption.

EFFECTIVE DATE: The exemption is effective for each contribution as of

September 14 and October 29, 1993, respectively.

For a more complete statement of the facts and representations

supporting the Department's decision to grant this exemption, refer to

the notice of proposed exemption (the Proposal) published on November

14, 1994, at 59 FR 56537.

WRITTEN COMMENTS AND MODIFICATIONS: The Department received over 160

comment letters from interested persons. The matters raised in the

comment letters concern: (1) Sufficiency of the notice to interested

persons regarding the Proposal; (2) the decision made by WEC to

contribute the Securities to the Plan rather than sell the Securities

on the open market; (3) the effect of the contribution of the

Securities on the Plan's funding status; (4) the investment performance

of the Tops Securities since the Plan's acquisition of such Securities

and the potential for losses by the Plan after the period covered by

the Makewhole Agreement; and (5) the role of Mellon as the independent

fiduciary for the Plan, particularly with respect to its obligations to

enforce the terms and conditions of the Makewhole Agreement.

The Department notes that in a letter dated December 27, 1994, the

International Brotherhood of Electrical Workers (IBEW) expressed

particular concerns regarding: (i) The apparent discretionary nature of

Mellon's obligations to enforce the terms of the Makewhole Agreement on

behalf of the Plan; (ii) the need to extend the period covered by the

Makewhole Agreement beyond September 14, 1996 for the Tops Securities

owned by the Plan to prevent losses during the 8-10 year period when

the Plan cannot dispose of all of the Tops Securities as a result of

the timing and volume restrictions of SEC Rule 144; (iii) the need for

an overall limitation on total Plan assets that can be committed to

``alternative investments'', including the Securities, which should not

exceed 5.2 percent (other than as may be occasioned merely by an

increase in value); and (iv) the need for the Proposal, if granted, to

clarify that Mellon's decisions regarding whether to exercise the

Plan's rights under the Makewhole Agreement will be fully subject to

the fiduciary responsibility rules of the Act, and that the Department,

by granting the exemption, would not be expressing an opinion regarding

whether any actions taken by Mellon are consistent with its fiduciary

obligations under the Act. Notwithstanding these concerns, the IBEW

stated that it favored the granting of the exemption if modifications

were made to address these issues.

By letter dated February 9, 1995, WEC responded to the issues

raised by the comment letters.

With respect to the sufficiency of the notice to interested persons

regarding the Proposal, WEC states that it provided the broadest

possible notice to Plan participants. Notice to active employees was

provided through either posting in workplaces, inter-office mail, or

both. Notice was sent to retirees and vested separated participants at

the most current address available to the Plan. WEC states that in the

case of a benefit program as large as the Plan, it is not unusual for

some participants to fail to keep current addresses on file with the

Plan, especially where a plant closing has resulted in the dispersal of

the local workforce. Although some of the commenters indicated that

adequate and timely notice was not provided in every instance, WEC

represents that it acted in good faith by taking all practicable steps

to provide the required notice, as prescribed by the Department's

regulations (see 29 CFR [[Page 32994]] 2570.43), and that all

participants were provided with a copy of the Proposal as published in

the Federal Register. In this regard, WEC states that the success of

its notification efforts was demonstrated by the fact that the

Department received over 160 comment letters, most of which raised

substantive issues regarding the Proposal.

With respect to the decision made by WEC to contribute the

Securities to the Plan rather than sell the Securities on the open

market, WEC states that the contribution enabled the Plan to satisfy a

pre-existing, independently developed investment target for

``alternative investments'' without incurring significant transaction

costs. As noted in Paragraph 2 of the Summary of Facts and

Representations in the Proposal (the Summary), the Plan developed

investment allocation guidelines in conjunction with the Frank Russell

Company in 1990. These guidelines established an allocation target of

approximately 5 percent for ``alternative investments''. WEC states

that such an allocation appropriately reflects the role of such

investments in a prudently diversified portfolio. In addition, WEC

represents that there is no intention to increase this allocation of

Plan assets to ``alternative investments'' above the current 5.2

percent.

In order to address the concerns raised by the commenters, WEC has

agreed to adding a new condition to the Proposal which requires that

additional Plan assets will not be used to purchase new ``alternative

investments'' to the extent that such purchases would cause more than

5.2 percent of the Plan's total assets to be invested in ``alternative

investments'' (see condition (e) above). Paragraph 2 of the Summary

states that ``alternative investments'' typically include venture

capital, buyout funds, distressed companies, mezzanine financing, oil

and gas programs, timberland or farmland, and economically targeted

investments addressing certain social policies.

With respect to the effect of the contribution of the Securities on

the Plan's funding status, WEC states that five factors indicate that

this transaction has had a positive effect on the Plan's funding.

First, WEC did not satisfy any current funding obligation through the

contribution of the Securities. The Plan has not had to forego any

legally required cash contribution; rather, the contribution of the

Securities was above and beyond what WEC was legally required to

contribute to the Plan at the time of the transactions.

Second, the Securities issued by Tele-Media Company of Western

Connecticut (the Tele-Media Securities), representing one-third of the

original value of the Securities contributed by WEC, have already been

sold at a profit (see Paragraph 6 of the Summary). The Plan, by

realizing the proceeds of this sale, has received $4,050,000 in

additional cash as the result of the contribution of the Tele-Media

Securities.

Third, the Securities issued by First Britannia Mezzanine N.V. (the

First Britannia Securities), while remaining stable in asset value,

have generated significant income for the Plan. The Plan has thus far

received approximately $2.4 million in interest on the debt portion and

approximately $9.3 million in cash dividends on the equity portion of

the First Britannia Securities. All of this income accrues to the

benefit of the Plan and improves the Plan's funding situation.

Fourth, the Plan is protected from diminutions in the value of the

Securities through the operation of the Makewhole Agreement. Such

support for the value of the Securities would be non-existent if the

Plan had purchased the Securities on the open market. Therefore, WEC

states that the Plan is better protected in accomplishing its

previously described goals for ``alternative investments'' as the

result of the contribution of the Securities than had a cash

contribution been used by the Plan to invest in such securities on the

open market.

Finally, in support of the Makewhole Agreement, WEC has contributed

an additional $25 million in cash to the Plan. This amount is above and

beyond WEC's other contribution obligations to the Plan. WEC states

that this $25 million contribution was made along with a $200 million

cash contribution on December 30, 1994 as part of WEC's program to

improve Plan funding, even though such amounts were not legally

required to satisfy any current minimum funding obligations. Under the

terms of the Makewhole Agreement, the additional $25 million will not

be used to reduce WEC's future contribution obligations until the end

of the term of the Makewhole Agreement.

Thus, WEC represents that the Plan has benefitted from, and the

Plan's funding has been improved by, the contribution of the

Securities.

With respect to the investment performance of the Tops Securities

and the potential for losses by the Plan after the period covered by

the Makewhole Agreement, WEC states that the publicly-traded price of

these Securities has fluctuated widely and is currently trading at a

price significantly below the price that existed on the date that the

Securities were contributed to the Plan. Because of the trading

restrictions on the Tops Securities, the Plan will be able to dispose

of only a small portion of the shares each year. Many of the commenters

suggested that WEC extend the period covered by Makewhole Agreement

regarding the Tops Securities. In addition, the Department expressed

concerns to WEC regarding the absence of additional guarantees for

potential losses by the Plan in connection with the continued holding

of both the First Britannia Securities and the Securities issued by

Federated Investors (the Federated Securities), as well as for the Tops

Securities, once the three-year period covered under the Makewhole

Agreement expires on September 14, 1996.

Consequently, WEC has agreed to extend the term of the Makewhole

Agreement until such time as the Plan's holdings of all of the

Securities are totally liquidated. Thus, the new Exercise Date under

the Makewhole Agreement, as amended, will be the date on which the

Plan's holdings of all of the Securities contributed by WEC on

September 14 and October 29, 1993, are liquidated. WEC states that the

remaining provisions of the Makewhole Agreement relating to, among

other things, the calculation of the Makewhole Amount will remain

unchanged, except that such calculation will no longer need to be based

on any appraisals of the fair market value of the Securities remaining

in the Plan because all of the Securities will have been liquidated at

that time. Further, the duration of the $25 million credit balance

provision, which is being used to ensure payment of the Makewhole

Amount to the Plan, will also be extended until the new Exercise Date

under the Makewhole Agreement.

Therefore, in response to WEC's additional representations

regarding the extension of the Makewhole Agreement, the Department has

modified the language of the previous condition (h) in the Proposal

(which has been redesignated as condition (i) above) by deleting the

reference in the opening clause to `` * * * the third anniversary of

the date of the first contribution made to the Plan * * *'' and

substituting therefor the phrase ``* * * the date on which the Plan no

longer holds any of the Securities contributed by WEC on September 14

and October 29, 1993 (the Exercise Date) * * *'' in order to redefine

the end of the Makewhole Period and create a new Exercise Date. The

Department has also deleted the phrase in the previous condition (h)(2)

of the Proposal and other phrases thereafter in such condition

referring to the fair market value of the Securities

[[Page 32995]] remaining in the Plan, and the appointment of one or

more independent appraisers to determine fair market value, for

purposes of establishing the Makewhole Amount.

In addition, the Department has amended the language of the

previous condition (i) in the Proposal (which has been redesignated as

condition (j) above) to reflect the fact that the duration of the $25

million credit balance provision, which is being used to ensure payment

of the Makewhole Amount to the Plan, will be extended until the new

Exercise Date under the Makewhole Agreement.

With respect to the role of Mellon as the independent fiduciary for

the Plan and its obligations to enforce the terms of the Makewhole

Agreement, WEC states that it was always WEC's understanding that

Mellon, whether acting as a Plan trustee, an independent fiduciary or

an investment manager, would be a Plan fiduciary fully subject to the

fiduciary responsibility rules of the Act. In this regard, WEC notes

that some commenters, including the IBEW, have questioned the provision

in the Makewhole Agreement committing exercise of the Plan's rights

under the Agreement to Mellon's discretion. WEC states that the sole

purpose of this provision was to make clear that Mellon, not WEC, would

be representing the Plan with regard to the operation of the Makewhole

Agreement, including the calculation of the Makewhole Amount and the

triggering of the necessary payment to the Plan.

In a separate letter submitted by Mellon in response to the

concerns raised by the comment letters, Mellon represents that any

actions taken by Mellon on behalf of the Plan in its role as

independent fiduciary will be subject to the provisions of Part 4 of

Title I of the Act. With respect to Mellon's authority under the

Makewhole Agreement, as amended by WEC and Mellon in response to

concerns raised by the IBEW and other commenters, the Agreement

requires the following:

(i) that WEC shall contribute the Makewhole Amount to the Plan upon

demand from Mellon in its role as ``the Independent Investment

Manager'' for the Plan;

(ii) that Mellon shall make such a demand in the event that a

Makewhole Amount is due to the Plan;

(iii) that the Makewhole Amount must be equal to the amount

determined by Mellon; and

(iv) that Mellon, in its role as ``the Independent Investment

Manager'' for the Plan, shall (rather than ``may'' as stated previously

in the Agreement prior to the amendment) exercise the rights under this

Agreement on behalf of the Plan by the delivery of a notice (the

``Notice of Exercise'') to WEC no later than the sixtieth (60th) day

after the Exercise Date.

Mellon states that these provisions are intended to set forth a

specific procedure for the determination and payment of the Makewhole

Amount (if any), and to make it clear that Mellon, not WEC, would be

acting on behalf of the Plan with regard to the Makewhole Agreement.

Thus, Mellon represents that if a payment is due under the Makewhole

Agreement, Mellon will, on behalf of the Plan, require WEC to make such

payment.

Accordingly, upon consideration of the entire exemption application

file and record, the Department has determined to grant the proposed

exemption as modified.

FOR FURTHER INFORMATION CONTACT: Mr. E.F. Williams of the Department,

telephone (202) 219-8194. (This is not a toll-free number.)

Mellon Bank, N.A. Located in Pittsburgh, Pennsylvania

[Prohibited Transaction Exemption 95-47; Application No. D-9523]

Section I--Exemption for In-Kind Transfer of CIF Assets

The restrictions of sections 406(a) and 406(b) of the Act and the

sanctions resulting from the application of section 4975 of the Code,

by reason of section 4975(c)(1)(A) through (F) of the Code, shall not

apply, as of November 5, 1993, to the in-kind transfer of assets of

plans for which Mellon Bank, N.A. or any of its affiliates (Mellon)

acts as a fiduciary (the Client Plans), other than plans established or

maintained by Mellon for its own employees, that are held in certain

collective investment funds maintained by Mellon (CIFs), in exchange

for shares of the Laurel Funds [a/k/a Dreyfus or Premier Funds] (the

Funds),\3\ open-end investment companies registered under the

Investment Company Act of 1940 (the 1940 Act), in situations where

Mellon acts as investment advisor for the Fund as well as custodian,

dividend disbursing agent, shareholder servicing agent, transfer agent,

and/or Fund accountant, or provides some other ``secondary service'' to

the Funds as defined in Section V(h), in connection with the

termination or partial termination of such CIFs, provided that the

following conditions and the general conditions of Section IV are met:

\3\The applicant represents that effective October 1994, the

Laurel Funds changed their name to either ``Dreyfus'' or ``Premier''

as a result of Mellon's acquisition of the Dreyfus Corporation, the

sponsor of the Dreyfus Funds.

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(a) No sales commissions or other fees are paid by the Client Plans

in connection with the purchase of Fund shares through the in-kind

transfer of CIF assets and no redemption fees are paid in connection

with the sale of such shares by the Client Plans to the Funds.

(b) Each Client Plan receives shares of a Fund which have a total

net asset value that is equal to the value of the Client Plan's pro

rata share of the assets of the CIF on the date of the in-kind

transfer, based on the current market value of the CIF's assets as

determined in a single valuation performed in the same manner at the

close of the same business day using independent sources in accordance

with Rule 17a-7 of the Securities and Exchange Commission under the

1940 Act (see 17 CFR 270.17a-7) and the procedures established by the

Funds pursuant to Rule 17a-7 for the valuation of such assets. Such

procedures must require that all securities for which a current market

price cannot be obtained by reference to the last sale price for

transactions reported on a recognized securities exchange or NASDAQ be

valued based on an average of the highest current independent bid and

lowest current independent offer, as of the close of business on the

Friday preceding the weekend of the CIF transfers (or, in the case of

any weekday CIF transfers, the day of the transfer), determined on the

basis of reasonable inquiry from at least three sources that are

broker-dealers or pricing services independent of Mellon.

(c) All or a pro rata portion of the assets of a Client Plan held

in a CIF are transferred in-kind to the Funds in exchange for shares of

such Funds.

(d) A second fiduciary which is independent of and unrelated to

Mellon (the Second Fiduciary) receives advance written notice of the

in-kind transfer of assets of the CIFs and full written disclosure of

information concerning the Funds (including a current prospectus for

each of the Funds and a statement describing the fee structure) and, on

the basis of such information, authorizes in writing the in-kind

transfer of the Client Plan's assets to a corresponding Fund in

exchange for shares of the Fund.

(e) For all transfers of CIF assets to a Fund following the

publication of the proposed exemption in the Federal Register (i.e.

January 30, 1995), Mellon sends by regular mail to each affected Client

Plan the following information:

(1) Within 30 days after completion of the transaction, a written

confirmation containing: [[Page 32996]]

(i) The identity of each security that was valued for purposes of

the transaction in accordance with Rule 17a-7(b)(4);

(ii) The price of each such security involved in the transaction;

(iii) The identity of each pricing service or market maker

consulted in determining the value of such securities; and

(2) Within 90 days after completion of each transfer, a written

confirmation that contains:

(i) The number of CIF units held by the Client Plan immediately

before the transfer, the related per unit value, and the total dollar

amount of such CIF units; and

(ii) The number of shares in the Funds that are held by the Client

Plan immediately following the transfer, the related per share net

asset value, and the total dollar amount of such shares.

(f) The conditions set forth in paragraphs (e), (f), and (n) of

Section II below are satisfied.

Section I--Exemption for Receipt of Fees

The restrictions of section 406(a) and 406(b) of the Act and the

sanctions resulting from the application of section 4975 of the Code,

by reason of section 4975(c)(1) (A) through (F) of the Code, shall not

apply, as of November 5, 1993, to the receipt of fees by Mellon from

the Funds for acting as an investment advisor for the Funds as well as

for providing other services to the Funds which are ``secondary

services'' as defined in Section V(h), in connection with the

investment by the Client Plans in shares of the Funds, provided that

the following conditions and the general conditions of Section IV are

met:

(a) Each Client Plan receives a cash credit of such Plan's

proportionate share of all fees charged to the Funds by Mellon for

investment advisory services and ``secondary services'', including any

investment advisory fees paid by Mellon to third party sub-advisers, no

later than the same day as the receipt of such fees by Mellon. The

crediting of all such fees to the Client Plans by Mellon is audited by

an independent accounting firm on at least an annual basis to verify

the proper crediting of the fees to each Client Plan.

(b) The price paid or received by a Client Plan for shares in a

Fund is the net asset value per share at the time of the transaction,

as defined in Section V(e), and is the same price which would have been

paid or received for the shares by any other investor at that time.

(c) Mellon, including any officer or director of Mellon, does not

purchase or sell shares of the Funds from or to any Client Plan.

(d) No sales commissions are paid by the Client Plans in connection

with the purchase or sale of shares of the Funds and no redemption fees

are paid in connection with the sale of shares by the Client Plans to

the Funds.

(e) The combined total of all fees received by Mellon for the

provision of services to a Client Plan, and in connection with the

provision of services to the Funds in which the Client Plan may invest,

are not in excess of ``reasonable compensation'' within the meaning of

section 408(b)(2) of the Act.

(f) Mellon does not receive any fees payable pursuant to Rule 12b-1

under the 1940 Act in connection with the transactions.

(g) The Client Plans are not employee benefit plans sponsored or

maintained by Mellon (other than master or prototype plans sponsored by

Mellon that are adopted by employers other than Mellon).

(h) The Second Fiduciary receives full and detailed written

disclosure of information concerning the Funds (including a current

prospectus for each of the Funds and a statement describing the fee

structure) in advance of any investment by the Client Plan in a Fund.

(i) On the basis of the information described above in paragraph

(h), the Second Fiduciary authorizes in writing the investment of

assets of the Client Plan in each particular Fund and the fees to be

paid by such Funds to Mellon.

(j) All authorizations made by a Second Fiduciary regarding

investments in a Fund and the fees paid to Mellon are subject to an

annual reauthorization wherein any such prior authorization referred to

in paragraph (i) shall be terminable at will by the Client Plan,

without penalty to the Client Plan, upon receipt by Mellon of written

notice of termination. A form expressly providing an election to

terminate the authorization described in paragraph (i) above (the

Termination Form) with instructions on the use of the form must be

supplied to the Second Fiduciary no less than annually. The

instructions for the Termination Form must include the following

information:

(1) The authorization is terminable at will by the Client Plan,

without penalty to the Client Plan, upon receipt by Mellon of written

notice from the Second Fiduciary; and

(2) Failure to return the Termination Form will result in continued

authorization of Mellon to engage in the transactions described in

paragraph (i) on behalf of the Client Plan.

(k) The Second Fiduciary of each Client Plan invested in a

particular Fund receives full written disclosure in a Fund prospectus

or otherwise of any increases in the rates of fees charged by Mellon to

the Funds for investment advisory services or other services (i.e.

``secondary services'') even though such fees will be credited to the

Client Plan as required by paragraph (a) above.

(l) On an annual basis, Mellon provides the Second Fiduciary of a

Client Plan investing in the Funds with:

(1) A copy of the current prospectus for the Funds and, upon such

fiduciary's request, a copy of the Statement of Additional Information

for such Funds which contains a description of all fees paid by the

Funds to Mellon;

(2) A copy of the annual financial disclosure report prepared by

Mellon which includes information about the Fund portfolios as well as

audit findings of an independent auditor within 60 days of the

preparation of the report; and

(3) Oral or written responses to inquiries of the Second Fiduciary

as they arise.

(m) With respect to each of the Funds in which a Client Plan

invests, in the event such Fund places brokerage transactions with

Mellon or an affiliate, Mellon will provide the Second Fiduciary of

such Client Plan at least annually with a statement specifying:

(1) The total, expressed in dollars, brokerage commissions of each

Fund's portfolio that are paid to Mellon by such Fund;

(2) The total, expressed in dollars, of brokerage commissions of

each Fund's portfolio that are paid by such Fund to brokerage firms

unrelated to Mellon;

(3) The average brokerage commissions per share, expressed as cents

per share, paid to Mellon by each Fund portfolio; and

(4) The average brokerage commissions per share, expressed as cents

per share, paid by each Fund portfolio to brokerage firms unrelated to

Mellon.

(n) All dealings between the Client Plans and the Funds are on a

basis no less favorable to the Client Plans than dealings with other

shareholders of the Funds.

Section III--Exemption for Transfers of Client Plan Securities From

Individual Portfolios

The restrictions of sections 406(a) and 406(b) of the Act and the

sanctions resulting from the application of section 4975 of the Code,

by reason of section 4975(c)(1) (A) through (F) of the Code, shall not

apply to an exchange (the [[Page 32997]] Exchange) by a Client Plan of

securities for shares of the Funds (other than an exchange covered by

Section I above), and to the receipt of fees by Mellon from the Funds

for acting as investment adviser for the Funds as well as providing

other services to the Funds which are ``secondary services'' as defined

in Section V(h), in connection with such an investment by a Client Plan

in the Funds, provided that the following conditions and the general

conditions in Section IV are met:

(a) The terms of the transaction are at least as favorable to the

Client Plan as those obtainable in an arm's-length transaction between

unrelated parties.

(b) Each Exchange is a one-time transaction between a Client Plan

and the Fund.

(c) All or a pro rata portion of the assets of a Client Plan held

by Mellon in an investment account or portfolio that is selected by the

Second Fiduciary of such Client Plan for an Exchange are transferred

in-kind to the Funds in exchange for shares of such Funds.

(d) No sales commission or dealer mark-up is paid by the Client

Plan in connection with the transaction.

(e) The Exchange meets the requirements of the particular Fund for

an in-kind purchase of shares of the Fund.

(f) One of the following conditions is met:

(1) The Client Plan receives a cash credit of such Plan's

proportionate share of all fees (including all investment advisory fees

and all secondary service fees) charged to the Funds by Mellon, less

any fees paid by Mellon to parties unrelated to Mellon for services

other than investment advisory services provided to the Funds, no later

than the same day as the receipt of such fees by Mellon;

(2) The assets of the Client Plan invested in the Funds are

excluded from the assets on which the investment management fees paid

by the Client Plan to Mellon are determined; or

(3) The Client Plan pays an investment management fee to Mellon

based on total Plan assets from which a credit is subtracted

representing only the Client Plan's pro rata share of the investment

advisory fees paid by the Funds to Mellon.

(g) For purposes of the Exchange, the price of securities is

established as of the close of business on the date for the Exchange

specified in the written authorization by the Second Fiduciary, as

follows:

(1) If the security is described in subparagraphs (b) (1) through

(3) of Rule 17a-7 under the 1940 Act (see 17 CFR 270.17a-7(b) (1)-(3)),

in accordance with the valuation procedures described in those

paragraphs; or

(2) If the security is not described in paragraph (g)(1) above, by

the recognized, independent pricing service or services disclosed to

the Second Fiduciary described in paragraph (j) below prior to its

written authorization of the Exchange. If no price is available from a

recognized, independent pricing service for such date, or from a

sufficient number of pricing services if more than one is to be used,

Mellon will determine the price by averaging the mean of the closing

bid and asked quotations from each of two or more recognized,

independent market markers and/or pricing services for such securities

on that date.

(h) For purposes of the Exchange, the price paid or received by a

Client Plan for Fund shares is the net asset value per share at the

time of the transaction, as defined in Section V(e), and Mellon

determines the value of the securities exchanged and the net asset

value of the Funds as of the close of business on the same day.

(i) Within 30 days after the authorization of the Exchange, the

Second Fiduciary receives a written confirmation that reflects the

price of each of the securities involved in the Exchange. For those

securities described in paragraph (g)(2) above, the confirmation will

include a written disclosure of the identity of the pricing service or

market markers consulted in determining the value of the securities.

(j) The Second Fiduciary acting for the Client Plan--

(1) receives advance written disclosure of information concerning

the Funds (including current prospectuses for the Funds and a statement

describing the fee structure to be used to comply with paragraph (f)

above) and, prior to the Exchange, receives in writing (A) the reasons

why Mellon may consider such Exchanges to be appropriate for the Client

Plan and a list of the securities held by the Client Plan that would be

accepted by one or more Funds with respect to the Exchange, (B) the

date the Exchange is to occur, and (C) an explanation of the procedures

that would be followed for valuing the securities for purposes of the

Exchange, including the identity of the recognized, independent pricing

service or services that will value any of the securities described in

paragraph (g)(2) above; and

(2) on the basis of such information, authorizes in writing the

investment of assets of the Client Plan in the Funds through the

Exchange and the fees to be paid by the Funds to Mellon.

(k) The authorization referred to in paragraph (j) is terminable at

will by the Client Plan, without penalty to the Client Plan, upon

receipt by Mellon of written notice of termination. A Termination Form

expressly providing an election to terminate the authorization

described in paragraph (j) with instructions on the use of the form

must be supplied to the Second Fiduciary no less than annually. The

instructions for the Termination Form must include the following

information:

(1) The authorization is terminable at will by the Client Plan,

without penalty to the Client Plan, upon receipt by Mellon of written

notice from the Second Fiduciary; and

(2) Failure to return the form will result in continued

authorization of the investment by the Client Plan in the Funds and the

payment of fees by the Funds to Mellon.

(l) If the fee structure described in paragraph (f)(2) or (f)(3)

above is followed, the Second Fiduciary is notified of any change in

any of the rates of the fees payable to Mellon for investment advisory

services or secondary services, that had been disclosed to the Second

Fiduciary as described in paragraph (j) above, at least 30 days prior

to the effective date of such change, and approves in writing the

continued holding of any Fund shares acquired by the Client Plan prior

to such change which are still held by the Plan. Such approval may be

limited solely to the investment advisory and other fees paid by the

Funds in relation to the fees paid by the Client Plan and need not

relate to any other aspect of such investment.

(m) The conditions set forth in paragraphs (c), (e), (f), (g), (l),

(m) and (n) of Section II above are satisfied.

Section IV--General Conditions

(a) Mellon maintains for a period of six years the records

necessary to enable the persons described below in paragraph (b) to

determine whether the conditions of this exemption have been met,

except that: (1) A prohibited transaction will not be considered to

have occurred if, due to circumstances beyond the control of Mellon,

the records are lost or destroyed prior to the end of the six-year

period, and (2) no party in interest other than Mellon shall be subject

to the civil penalty that may be assessed under section 502(i) of the

Act or to the taxes imposed by section 4975 (a) and (b) of the Code if

the records are not maintained or are not available for examination as

required by paragraph (b) below.

(b) (1) Except as provided below in paragraph (b)(2) and

notwithstanding [[Page 32998]] any provisions of section 504(a)(2) of

the Act, the records referred to in paragraph (a) are unconditionally

available at their customary location for examination during normal

business hours by--

(i) Any duly authorized employee or representative of the

Department or the Internal Revenue Service,

(ii) Any fiduciary of the Client Plans who has authority to acquire

or dispose of shares of the Funds owned by the Client Plans, or any

duly authorized employee or representative of such fiduciary, and

(iii) Any participant or beneficiary of the Client Plans or duly

authorized employee or representative of such participant or

beneficiary;

(2) None of the persons described in paragraph (b)(1) (ii) and

(iii) shall be authorized to examine trade secrets of Mellon, or

commercial or financial information which is privileged or

confidential.

Section V--Definitions

For purposes of this exemption:

(a) The term ``Mellon'' means the Mellon Bank, N.A. and any

affiliate thereof as defined below in paragraph (b) of this section.

(b) An ``affiliate'' of a person includes:

(1) Any person directly or indirectly through one or more

intermediaries, controlling, controlled by, or under common control

with the person;

(2) Any officer, director, employee, relative, or partner in any

such person; and

(3) Any corporation or partnership of which such person is an

officer, director, partner, or employee.

(c) The term ``control'' means the power to exercise a controlling

influence over the management or policies of a person other than an

individual.

(d) The term ``Fund'' or ``Funds'' shall include the Laurel Funds,

Inc. [a/k/a the Dreyfus Funds or the Premier Funds], or any other

diversified open-end investment company or companies registered under

the 1940 Act for which Mellon serves as an investment adviser and may

also serve as a custodian, dividend disbursing agent, shareholder

servicing agent, transfer agent, Fund accountant, or provide some other

``secondary service'' (as defined below in paragraph (h) of this

Section) which has been approved by such Funds.

(e) The term ``net asset value'' means the amount for purposes of

pricing all purchases and sales calculated by dividing the value of all

securities, determined by a method as set forth in the Fund's

prospectus and statement of additional information, and other assets

belonging to the Fund or portfolio of the Fund, less the liabilities

charged to each such portfolio or Fund, by the number of outstanding

shares.

(f) The term ``relative'' means a ``relative'' as that term is

defined in section 3(15) of the Act (or a ``member of the family'' as

that term is defined in section 4975(e)(6) of the Code), or a brother,

a sister, or a spouse of a brother or a sister.

(g) The term ``Second Fiduciary'' means a fiduciary of a Client

Plan who is independent of and unrelated to Mellon. For purposes of

this exemption, the Second Fiduciary will not be deemed to be

independent of and unrelated to Mellon if:

(1) Such fiduciary directly or indirectly controls, is controlled

by, or is under common control with Mellon;

(2) Such fiduciary, or any officer, director, partner, employee, or

relative of the fiduciary is an officer, director, partner or employee

of Mellon (or is a relative of such persons);

(3) Such fiduciary directly or indirectly receives any compensation

or other consideration for his or her own personal account in

connection with any transaction described in this exemption.

If an officer, director, partner or employee of Mellon (or relative

of such persons), is a director of such Second Fiduciary, and if he or

she abstains from participation in (i) the choice of the Client Plan's

investment adviser, (ii) the approval of any such purchase or sale

between the Client Plan and the Funds, and (iii) the approval of any

change in fees charged to or paid by the Client Plan in connection with

any of the transactions described in Sections I, II and III above, then

paragraph (g)(2) of this section shall not apply.

(h) The term ``secondary service'' means a service other than an

investment management, investment advisory, or similar service, which

is provided by Mellon to the Funds. However, for purposes of Sections

II(a) and III(f)(1) this exemption, the term ``secondary service'' will

not include any brokerage services provided to the Funds by Mellon for

the execution of securities transactions engaged in by the Funds.

(i) The term ``Termination Form'' means the form supplied to the

Second Fiduciary which expressly provides an election to the Second

Fiduciary to terminate on behalf of a Client Plan the authorization

described in paragraph (j) of Section II and paragraph (k) of Section

III. Such Termination Form may be used at will by the Second Fiduciary

to terminate an authorization without penalty to the Client Plan and to

notify Mellon in writing to effect a termination by selling the shares

of the Funds held by the Client Plan requesting such termination within

one business day following receipt by Mellon of the form; provided that

if, due to circumstances beyond the control of Mellon, the sale cannot

be executed within one business day, Mellon shall have one additional

business day to complete such sale.

EFFECTIVE DATE: The exemption is effective November 5, 1993, for those

transactions described in Sections I and II above.

For a more complete statement of the facts and representations

supporting the Department's decision to grant this exemption, refer to

the notice of proposed exemption published on January 30, 1995, at 60

FR 5704.

NOTICE TO INTERESTED PERSONS: The applicant represents that it was

unable to notify interested persons within the time period specified in

the Federal Register notice published on January 30, 1995. The

applicant states that interested persons were notified, in the manner

agreed upon between the applicant and the Department, by March 22,

1995. Interested persons were advised that they had until April 21,

1995 to comment on the proposed exemption.

WRITTEN COMMENTS AND MODIFICATIONS: The applicant submitted the

following comments and requests for modifications regarding the notice

of proposed exemption (the Proposal).

With respect to the use of the term ``affiliate'', the applicant

states that both the beginning of Sections I and V(a) define the term

``Mellon'' to include its affiliates. Therefore, the applicant notes

that references in the body of the Proposal to affiliates of Mellon

would appear to be unnecessary, and their presence would raise the

question of whether particular conditions are intended to apply to

affiliates of Mellon's affiliates. In this regard, the applicant

requests that Section II(c) of the Proposal be revised to read as

follows:

``* * * Mellon, including any officer or director of Mellon,

does not purchase or sell shares of the Funds from or to any Client

Plan.''

This revision would clarify that the condition does not extend to

all affiliates of Mellon's affiliates, but does extend to Mellon and

its ``affiliates'' as that term is defined in Section V(a) of the

Proposal. In addition, the applicant requests that the statement ``* *

* or an affiliate'', which appears after the first mention of Mellon in

subparagraphs (1) and (3) of Section II(m), relating to the provision

of brokerage services, is [[Page 32999]] unnecessary and should be

deleted. The Department concurs with the applicant's requested

clarifications and has so modified the language of the Proposal.

With respect to the use of the term ``Client Plans'' in Section

II(g) of the Proposal, the applicant states that this section, which

also is incorporated by reference into Section III, excludes from the

term ``Client Plans'' any employee benefit plans sponsored or

maintained by Mellon. Mellon's understanding of this condition is that

it is meant to exclude ``in-house plans'' of Mellon (i.e. plans

maintained by Mellon for its own employees) from relief under the

requested exemption. However, the applicant notes that Mellon is also

the sponsor of master and prototype plans that are adopted by third

parties. The applicant wishes to clarify that such plans were not meant

to be excluded from relief under the exemption. Therefore, the

applicant proposes the following change to Section II(g):

``* * * The Client Plans are not employee benefit plans

sponsored or maintained by Mellon (other than master or prototype

plans sponsored by Mellon that are adopted by employers other than

Mellon). [emphasis added]

The applicant requests that the same parenthetical language

referred to above be added to the opening paragraph of Section I,

following the phrase ``* * * other than plans established or maintained

by Mellon''. In this regard, the Department concurs with the

applicant's requested clarifications, but for the opening paragraph of

Section I has added the phrase ``* * * for its own employees'' instead

of the parenthetical language used in Section II(g).

With respect to the definition of the term ``Second Fiduciary'' in

Section V(g) of the Proposal, the applicant notes that the language

following subparagraph (3) describes an exception for when a fiduciary

is considered ``independent'' for purposes of the exemption. Part (iii)

of this exception refers to approvals by a ``Second Fiduciary'' as

described in Sections I and II. The applicant states that this sentence

in Part (iii) should also refer to Section III because that section

contains an approval requirement for a ``Second Fiduciary'' as well.

The Department concurs with this clarification and has so modified the

language of the Proposal.

With respect to the definition of the term ``secondary service'' in

Section V(h) of the Proposal, the current definition excludes from the

scope of that term any brokerage services provided to the Funds by

Mellon for the execution of securities transactions engaged in by the

Funds. In this regard, the applicant notes that this exclusion should

not prohibit Mellon from providing brokerage services to the Funds

because, to the contrary, Section II(m) of the Proposal requires

certain disclosures to be made based on the fact that such services may

be provided. However, the applicant states that Sections II(a) and

III(f)(1) require Mellon to credit to the Client Plans all fees for the

``secondary services'' it provides to the Funds. Thus, the applicant

wishes to clarify that brokerage services should be specifically

excluded from treatment as a ``secondary service'' under these

sections, so that, consistent with the purpose behind the disclosures

required in Section II(m), Mellon is not required to credit its fees

for brokerage services in the same manner that it is required to credit

its fees for other secondary services. Therefore, the applicant

requests that the second sentence in Section V(h) of the Proposal

should read as follows:

``* * * However, for purposes of Sections II(a) and III(f)(1) of

this exemption, the term ``secondary service'' will not include any

brokerage services provided to the Funds by Mellon for the execution

of securities transactions engaged in by the Funds.'' [emphasis

added]

The Department concurs with this clarification and has so modified

the language of the Proposal.

With respect to the definition of the term ``Termination Form'' in

Section V(i) of the Proposal, the current definition refers to the

condition describing that form in Section II(j). However, the applicant

notes that the ``Termination Form'' is also described in Section III(k)

of the Proposal, so that Section V(i) should refer specifically to

``paragraph (k) of Section III'' following the reference to Section

II(j). The Department concurs with the applicant's requested

clarification and has so modified the language of the Proposal.

Finally, the applicant states that Section III of the Proposal,

dealing with transfers of Client Plan securities from individual

portfolios, provides relief for both the ``credit'' fee structure

described in Section II (which provides a full cash credit of all Fund-

level fees) and the two fee structures described in Prohibited

Transaction Exemption (PTE) 77-4 (42 FR 18732, April 8, 1977).\4\ With

regard to the fee structures described in PTE 77-4 (the PTE 77-4 Fee

Structures), any change in fees received by Mellon from a Fund must be

disclosed at least 30 days prior to the effective date of the change

and be approved in writing. Mellon represents that the use of an

``affirmative'' approval requirement for the PTE 77-4 Fee Structures

creates a number of problems. Mellon states that the Department has

previously recognized the administrative difficulties caused by an

affirmative approval requirement for increases in Fund-level fees.

Mellon notes that the Department has allowed, through recent individual

exemptions, the use of a ``passive'' approval condition under which the

independent fiduciaries of Client Plans receive notice of any increase

in Fund fees at least 30 days in advance of the effective date of such

increase and a ``Termination Form'' which allows a Client Plan to

withdraw from the Fund.\5\ If the bank does not receive a ``Termination

Form'' from a Client Plan prior to the effective date of the fee

increase, the independent fiduciary of the Client Plan is deemed to

have approved the fee increase.\6\

\4\PTE 77-4, in pertinent part, permits the purchase and sale by

an employee benefit plan of shares of a registered, open-end

investment company when a fiduciary with respect to the plan is also

the investment adviser for the investment company, provided that,

among other things, the plan does not pay an investment management,

investment advisory or similar fee with respect to the plan assets

invested in such shares for the entire period of such investment.

Section II(c) of PTE 77-4 states that this condition does not

preclude the payment of investment advisory fees by the investment

company under the terms of an investment advisory agreement adopted

in accordance with section 15 of the Investment Company Act of 1940.

Section II(c) states further that this condition does not preclude

payment of an investment advisory fee by the plan based on total

plan assets from which a credit has been subtracted representing the

plan's pro rata share of investment advisory fees paid by the

investment company.

\5\The Department notes that this approval process for increases

in Fund-level fees with the use of a ``Termination Form'' by Client

Plans would be similar to the arrangement previously described by

Mellon, and included in Section II of the Proposal, for annual

reauthorizations of Fund investments by Client Plans where credits

of all Fund-level fees are made. The Department notes further that

the latter arrangement involving a full credit of Fund-level fees

was the particular fee structure which Mellon designed at the time

of the initial in-kind transfers of CIF assets to the Funds in order

to be able to represent to the affected Client Plans that no

increases in fees paid by such Plans would result from the transfer

of such assets to the Funds.

\6\See PTE 94-86 (Bank of California, N.A.), 59 FR 65403,

December 19, 1994; PTE 95-33 (BankSouth, N.A.), 60 FR 20773, April

27, 1995.

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Therefore, Mellon requests that the final exemption contain a

``passive'' approval condition that would apply to both in-kind and

cash investments in a Fund where any PTE 77-4 Fee Structure is used.

In this regard, the Department is not prepared, at this time, to

include such a material change to the conditions of the Proposal as

part of the final exemption for the transactions described herein. Upon

the receipt of a [[Page 33000]] new exemption request pertaining to

this issue, the Department is willing to consider the merits of such a

change in the conditions pertaining to the PTE 77-4 Fee Structures used

by Mellon. Such request, when received, would be processed as an

amendment to the final exemption for the subject transactions involving

the Funds.

No other comments, and no requests for a hearing, were received by

the Department during the comment period, as extended pursuant to the

applicant's notification of interested persons as discussed herein.

Accordingly, the Department has determined to grant the proposed

exemption as modified.

FOR FURTHER INFORMATION CONTACT: Mr. E. F. Williams of the Department,

telephone (202) 219-8194. (This is not a toll-free number.)

Norwest Bank Minnesota, N.A., Located in Minneapolis, MN

[Prohibited Transaction Exemption 95-48; Exemption Application No.

D-09595]

Exemption

Section I. Exemption for the In-Kind Transfer of Assets

The restrictions of sections 406(a) and 406(b) of the Act and the

sanctions resulting from the application of section 4975 of the Code,

by reason of section 4975(c) of the Code, shall not apply, as of

September 30, 1994, to the in-kind transfer of assets of plans for

which Norwest Bank Minnesota, N.A. or any of its affiliates

(collectively, the Bank) serves as a fiduciary (the Client Plans),

including plans established or maintained by the Bank (the Bank Plans;

collectively, the Plans), that are held in certain collective

investment funds (the CIFs) maintained by the Bank, in exchange for

shares of the Norwest Funds (the Funds), an open-end investment company

registered under the Investment Company Act of 1940 (the '40 Act), as

amended, for which the Bank acts as investment adviser, custodian, and

shareholder servicing agent, in connection with the termination of such

CIFs provided that the following conditions are met:

(a) No sales commissions or other fees are paid by a Bank Plan or a

Client Plan in connection with the purchase of shares of the Funds

through the in-kind transfer of CIF assets and no redemption fees are

paid in connection with the sale of such shares of the Funds.

(b) All of the assets of a Bank Plan or a Client Plan that are held

in the CIFs are transferred in-kind to the Funds in exchange for shares

of such Funds. A Plan not electing to participate in the Funds receives

a cash payment representing a pro rata portion of the assets of the

terminating CIF before the final liquidation takes place.

(c) Each Bank Plan and each Client Plan receives shares of the

Funds which have a total net asset value that is equal to the value of

such Plan's pro rata share of the assets of the CIF on the date of the

transfer, based on the current market value of the CIF's assets, as

determined in a single valuation performed in the same manner at the

close of the same business day, using independent sources in accordance

with the procedures set forth in Rule 17a-7(b) (Rule 17a-7) under the

'40 Act and the procedures established by the Funds pursuant to Rule

17a-7 for the valuation of such assets. Such procedures must require

that all securities for which a current market price cannot be obtained

by reference to the last sale price for transactions reported on a

recognized securities exchange or NASDAQ be valued based on an average

of the highest current independent bid and lowest current independent

offer, as of the close of business on the Friday preceding the weekend

of the CIF transfers, determined on the basis of reasonable inquiry

from at least three sources that are broker-dealers or pricing services

independent of the Bank.

(d) A second fiduciary who is independent of and unrelated to the

Bank (the Second Fiduciary) receives advance written notice of the in-

kind transfer of assets of the CIFs and full written disclosure, which

includes but is not limited to, the following information concerning

the Funds:

(1) A current prospectus for each portfolio of the Funds in which a

Bank Plan or a Client Plan is considering investing;

(2) A statement describing (i) the fees for investment advisory or

similar services that are to be credited back to a Client Plan, (ii)

the fees retained by the Bank for Secondary Services, as defined in

paragraph (g) of Section III below, and (iii) all other fees to be

charged to or paid by the Bank Plan or the Client Plan and by such

Funds to the Bank or to unrelated third parties. Such statement also

includes the nature and extent of any differential between the rates of

the fees.

(3) The reasons why the Bank considers such investment to be

appropriate for the Bank Plan or the Client Plan;

(4) A statement describing whether there are any limitations

applicable to the Bank with respect to which assets of a Bank Plan or a

Client Plan may be invested in the relevant Funds, and, if so, the

nature of such limitations; and

(5) Upon request of the Second Fiduciary, a copy of the proposed

exemption and/or a copy of the final exemption.

(e) On the basis of the foregoing information, the Second Fiduciary

authorizes in writing the in-kind transfer of the Bank Plan's or the

Client Plan's CIF assets to a Fund in exchange for shares of the Funds,

the investment of such assets in corresponding portfolios of the Funds,

the fees received by the Bank in connection with its services to the

Funds and, in the case of a Client Plan only, the purchase by such

Client Plan of additional shares of the corresponding Funds with the

fees credited back to the Client Plan by the Bank. Such authorization

by the Second Fiduciary will be consistent with the responsibilities,

obligations and duties imposed on fiduciaries under Part 4 of Title I

of the Act.

(f) For all subsequent transfers of CIF assets to a Fund following

the publication of the proposed exemption in the Federal Register, the

Bank sends by regular mail to each affected Bank Plan and Client Plan a

written confirmation, not later than 30 days after the completion of

the transaction, containing the following information:

(1) The identity of each security that was valued for purposes of

the transaction in accordance with Rule 17a-7(b)(4) of the '40 Act;

(2) The price of each such security involved in the transaction;

and

(3) The identity of each pricing service or market maker consulted

in determining the value of such securities.

(g) For all subsequent transfers of CIF assets to a Fund following

the publication of the proposed exemption in the Federal Register, the

Bank sends by regular mail, no later than 90 days after completion of

each transfer, a written confirmation that contains the following

information:

(1) The number of CIF units held by the Plan immediately before the

transfer, the related per unit value and the total dollar amount of

such CIF units;

(2) The number of shares in the Funds that are held by the Plan

following the conversion, the related per share net asset value and the

total dollar amount of such shares.

(h) The conditions set forth in paragraphs (c), (d), (e), (o) and

(p) of Section II below as they would relate to all Plans are

satisfied. [[Page 33001]]

Section II. Exemption for the Receipt of Fees

The restrictions of sections 406(a) and 406(b) of the Act and the

sanctions resulting from the application of section 4975 of the Code,

by reason of section 4975(c) of the Code, shall not apply, as of

November 11, 1994, to: (1) The receipt of fees by the Bank from the

Funds for acting as an investment adviser to the Funds; and (2) the

receipt and proposed retention of fees by the Bank from the Funds for

acting as custodian or shareholder servicing agent to the Funds, as

well as for any other services provided to the Funds which are not

investment advisory services (i.e., the Secondary Services), in

connection with the investment in shares of the Funds by the Client

Plans, other than the Bank Plans, for which the Bank serves as

fiduciary.

The aforementioned transactions are subject to the following

conditions:

(a) No sales commissions are paid by the Client Plans in connection

with the purchase or sale of shares of the Funds and no redemption fees

are paid in connection with the sale of shares by the Client Plans to

the Funds.

(b) The price paid or received by the Client Plans for shares in

the Funds is the net asset value per share, as defined in paragraph (d)

of Section III, at the time of the transaction and is the same price

which would have been paid or received for the shares by any other

investor at that time.

(c) Neither the Bank nor an affiliate, including any officer or

director, purchases from or sells to any of the Client Plans shares of

any of the Funds.

(d) The combined total of all fees received by the Bank for the

provision of services to the Client Plans, and in connection with the

provision of services to any of the Funds in which the Client Plans

invest, are not in excess of ``reasonable compensation'' within the

meaning of section 408(b)(2) of the Act.

(e) The Bank does not receive any fees payable, pursuant to Rule

12b-1 of the 1940 Act in connection with the transactions involving the

Funds.

(f) Each Client Plan receives a credit, either through cash or, if

applicable, the purchase of additional shares of the Funds, pursuant to

an annual election, which may be revoked at any time, made by the

Client Plan, of such Plan's proportionate share of all investment

advisory fees charged to the Funds by the Bank, including any

investment advisory fees paid by the Bank to third party sub-advisers,

within not more than one business day after the receipt of such fees by

the Bank.

(g) The Second Fiduciary receives, in advance of investment by a

Client Plan in the Funds, full and detailed written disclosure of

information concerning the relevant Funds as set forth above in Section

I(d).

(h) On the basis of the information described in paragraph (d) of

Section I, the Second Fiduciary authorizes in writing:

(1) The ongoing investment of assets of the Client Plans in shares

of the Funds, in connection with the transactions set forth in Section

II;

(2) The investment portfolios of the Funds in which the assets of

the Client Plans may be invested; and

(3) The fees to be paid by the Funds in which Client Plans invest

to the Bank and the purchase of additional shares of the Funds by the

Client Plan with the fees credited to the Client Plan by the Bank.

(i) The authorization referred to in paragraph (h) is terminable at

will by the Client Plan, without penalty to the Client Plan. Such

termination will be effected by the Bank selling the shares of the

Funds held by the affected Client Plan within the period of time

specified by the Client Plan but not more than one business day

following receipt by the Bank from the Second Fiduciary, of the

termination form (the Termination Form), as defined in paragraph (h) of

Section III below, or any other written notice of termination; provided

that, if due to circumstances beyond the control of the Bank, the sale

cannot be executed within one business day, the Bank shall have one

additional business day to complete such sale.

(j) In the event of an increase in the contractual rate of any fees

paid by the Funds to the Bank regarding investment advisory services or

fees for similar services that had been authorized by the Second

Fiduciary in accordance with paragraph (h) of this Section II, the Bank

provides written notice to the Second Fiduciary in a prospectus for the

Funds or otherwise, of any increases in the contractual rate of fees

charged by the Bank to the Funds for investment advisory services even

though such fees will be credited to the Client Plans as required by

paragraph (f) of Section II.

(k) In the event of an additional Secondary Service, as defined in

paragraph (g) of Section III below, provided by the Bank to the Funds

for which a fee is charged or an increase in the contractual rate of

any fee due from the Funds to the Bank for any Secondary Service, as

defined in paragraph (g) of Section III below, that results from an

increase in the rate of such fee or from the decrease in the number or

kind of services performed by the Bank for such fee over an existing

rate for such Secondary Service which had been authorized by the Second

Fiduciary of a Client Plan in accordance with paragraph (h) of this

Section II, the Bank will, at least 30 days in advance of the

implementation of such additional service for which a fee is charged or

fee increased, provide written notice to the Second Fiduciary

explaining the nature and amount of the additional service for which a

fee is charged or the nature and amount of the increase in fees of the

affected Fund. Such notice will be accompanied by the Termination Form,

as defined in paragraph (h) of Section III below.

(l) The Second Fiduciary is supplied with a Termination Form at the

times specified in paragraphs (k) and (m) of this Section II, which

expressly provides an election to terminate the authorization,

described above in paragraph (h) of this Section II, with instructions

regarding the use of such Termination Form including statements that:

(1) The authorization is terminable at will by any of the Client

Plans, without penalty to such Plans. The termination will be effected

by the Bank selling the shares of the Funds held by the Client Plans

requesting termination within the period of time specified by the

Client Plan, but not later than one business day following receipt by

the Bank from the Second Fiduciary of the Termination Form or any

written notice of termination; provided that if, due to circumstances

beyond the control of the Bank, the sale of shares of such Client Plans

cannot be executed within one business day, the Bank shall have one

additional business day to complete such sale; and

(2) Failure by the Second Fiduciary to return the form on behalf of

the Plan will be deemed to be an approval of the additional Secondary

Service for which a fee is charged or increase in the rate of any fees

and will result in the continuation of the authorization, as described

in paragraph (h) of this Section II, of the Bank to engage in the

transactions on behalf of the Client Plan.

(m) The Second Fiduciary is supplied with a Termination Form, at

least once in each calendar year, beginning with the calendar year that

begins after the date of the grant of this proposed exemption is

published in the Federal Register and continuing for each calendar year

thereafter; provided that the Termination Form need not be supplied to

the Second Fiduciary, pursuant to paragraph (m) of this Section II,

sooner than six months after such Termination Form is supplied pursuant

to paragraph (k) of this Section [[Page 33002]] II, except to the

extent required by said paragraph (k) of this Section II to disclose an

increase in fees.

(n) On an annual basis, the Bank will provide the Second Fiduciary

of a Client Plan investing in the Funds with:

(1) A copy of the current prospectus for the Funds and upon such

fiduciary's request, a copy of the Statement of Additional Information

which contains a description of all fees paid by the Funds to the Bank.

(2) A copy of the annual financial disclosure report prepared by

the Bank which contains information about the portfolios of the Funds

and includes audit findings of an independent auditor within 60 days of

the preparation of the report.

In addition, the Bank will respond to oral or written responses to

inquiries of the Second Fiduciary as they arise.

(o) All dealings between the Client Plans and the Funds are on a

basis no less favorable to the Client Plans than dealings between the

Funds and other shareholders holding the same class of shares as the

Client Plans.

(p) The Bank maintains for a period of six years the records

necessary to enable the persons described below in paragraph (q) to

determine whether the conditions of this exemption have been met,

except that--

(1) A prohibited transaction will not be considered to have

occurred if, due to circumstances beyond the control of the Bank, the

records are lost or destroyed prior to the end of the six year period,

and

(2) No party in interest shall be subject to the civil penalty that

may be assessed under section 502(i) of the Act or to the taxes imposed

by section 4975(a) and (b) of the Code if the records are not

maintained or are not available for examination as required by

paragraph (q) of Section II below; and

(q)(1) Except as provided in paragraph (p)(2) and notwithstanding

any provisions of section 504(a)(2) and (b) of the Act, the records

referred to in paragraph (p) are unconditionally available at their

customary location for examination during normal business hours by--

(i) Any duly authorized employee or representative of the

Department, the Internal Revenue Service or the Securities and Exchange

Commission;

(ii) Any fiduciary of a Client Plan who has authority to acquire or

dispose of shares of the Funds owned by the Client Plan, or any duly

authorized employee or representative of such fiduciary, and

(iii) Any participant or beneficiary of a Client Plan or duly

authorized employee or representative of such participant or

beneficiary;

(2) None of the persons described in paragraphs (q)(1)(ii) and

(iii) shall be authorized to examine trade secrets of the Bank, or

commercial or financial information which is privileged or

confidential.

Section III. Definitions

For purposes of this exemption:

(a) The term ``Bank'' means Norwest Bank Minnesota, N.A. and any

affiliate of the Bank, as defined in paragraph (b) of this Section III.

(b) An ``affiliate'' of the Bank includes--

(1) Any person directly or indirectly through one or more

intermediaries, controlling, controlled by, or under common control

with the Bank. (For purposes of this paragraph, the term ``control''

means the power to exercise a controlling influence over the management

or policies of a person other than an individual.)

(2) Any officer, director, employee, relative or partner in such

person, and

(3) Any corporation or partnership of which such person is an

officer, director, partner or employee.

(c) The term ``Fund'' or ``Funds'' refers to the Norwest Funds or

to any diversified open-end investment company or companies registered

under the '40 Act for which the Bank serves as an investment adviser

and may also serve as a custodian, shareholder servicing agent,

transfer agent or provide some other ``Secondary Service'' (as defined

below in paragraph (g) of this Section IV) which has been approved by

such Funds.

(d) The term ``net asset value'' means the amount for purposes of

pricing all purchases and sales calculated by dividing the value of all

securities, determined by a method as set forth in a Fund's prospectus

and statement of additional information, and other assets belonging to

each of the portfolios in such Fund, less the liabilities chargeable to

each portfolio, by the number of outstanding shares.

(e) The term ``relative'' means a ``relative'' as that term is

defined in section 3(15) of the Act (or member of the ``family'' as

that term is defined in section 4975(e)(6) of the Code), or a brother,

a sister, or a spouse of a brother or a sister.

(f) The term ``Second Fiduciary'' means a fiduciary of a plan who

is independent of and unrelated to the Bank. For purposes of this

exemption, the Second Fiduciary will not be deemed to be independent of

and unrelated to the Bank if:

(1) Such Second Fiduciary directly or indirectly controls, is

controlled by, or is under common control with the Bank;

(2) Such Second Fiduciary, or any officer, director, partner,

affiliate, employee, or relative of such Second Fiduciary is an

officer, director, partner or employee of the Bank (or is a relative of

such persons);

(3) Such Second Fiduciary directly or indirectly receives any

compensation or other consideration for his or her own personal account

in connection with any transaction described in this proposed

exemption; provided, however that with respect to Bank Plans, the

Second Fiduciary may receive compensation from the Bank in connection

with the transactions contemplated herein, but the amount or payment of

such compensation may not be contingent upon or be in any way affected

by the Second Fiduciary's ultimate decision regarding whether the Bank

Plans participate in such transactions.

With the exception of the Bank Plans, if an officer, director,

partner, affiliate or employee of the Bank (or relative of such

persons), is a director of such Second Fiduciary, and if he or she

abstains from participation in: (i) The choice of the Plan's investment

adviser, (ii) the approval of any such purchase or sale between the

Client Plan and the Funds, and (iii) the approval of any change of fees

charged to or paid by the Client Plan, any of the transactions

described in Sections I and II above, then paragraph (f)(2) of this

Section IV, shall not apply.

(g) The term ``Secondary Service'' means a service, other than

investment advisory or similar services which is provided by the Bank

to the Funds, including, but not limited to, custodial or shareholder

services. However, the term ``Secondary Service'' does not include any

brokerage services provided by the Bank to the Funds.

(h) The term ``Termination Form'' means the form supplied to the

Second Fiduciary at the times specified in paragraphs (i), (k), (l) and

(m) of Section II which expressly provides an election to the Second

Fiduciary to terminate on behalf of a Plan the authorization described

in paragraph (h) of Section II. Such Termination Form is to be used at

will by the Second Fiduciary to terminate such authorization without

penalty to the Plan and to notify the Bank in writing to effect such

termination by selling the shares of the Fund held by the Plan

requesting termination not later than one business day following

receipt by the Bank of written notice of such request for termination;

provided that if, due to circumstances beyond the control of the Bank,

the shares of such Client Plans cannot be executed within one business

[[Page 33003]] day, the Bank shall have one additional business day to

complete such sale.

EFFECTIVE DATE: This exemption is effective as of September 30, 1994

with respect to the transactions described in Section I and as of

November 11, 1994 with respect to the transactions described in Section

II.

Written Comments

The Department received two written comments with respect to the

notice of proposed exemption and no requests for a public hearing. Both

comments were submitted by the Bank. The first comment clarifies

Section II(f) of the exemption and the parallel language contained in

the Summary of Facts and Representations (the Summary). In pertinent

part, Section II(f) states the following:

Each Client Plan receives a credit, either through cash or, if

applicable, the purchase of additional shares of the Funds, pursuant

to an annual election, which may be revoked at any time, made by the

Client Plan, of such Plan's proportionate share of all investment

advisory fees charged to the Funds by the Bank, including any

investment advisory fees paid by the Bank to a third party sub-

adviser, within not more than one business day after the receipt of

such fee by the Bank.

The Bank represents that in the future, some of the Funds may hire

a third party sub-adviser directly. In this event, the Bank states that

it will comply with the fee rebate mechanism described in the notice of

proposed exemption with respect to any fees paid by the Funds to the

third party sub-adviser. The Department does not have any objection to

the proposed hiring arrangement, given that the same fee rebate

mechanism will be in place. Accordingly, the Department concurs with

the applicant's clarification of Section II(f) and the corresponding

language in the Summary.

The second comment pertains to notification of interested persons.

In this comment, the Bank represents that it did not comply with the

notice to interested persons requirement for participants in the Bank

Plans within the time frame stated in the exemption application. By

letter dated May 23, 1995, the Bank explains that it reposted the

notice of proposed exemption for an additional 16 days ending June 5,

1995 in each of the major work sites where the notice had been

originally posted. No comments were received by the Department from

Bank Plan participants.

After giving full consideration to the entire record, including the

written comments that were submitted by the Bank, the Department has

decided to grant the exemption as described and revised above. Comment

letters have been included as part of the public record of the

exemption application. The complete application file, including all

supplemental submissions received by the Department, is made available

for public inspection in the Public Documents Room of the Pension and

Welfare Benefits Administration, Room N-5638, U.S. Department of Labor,

200 Constitution Avenue, N.W., Washington, D.C. 20210.

For a more complete statement of the facts and representations

supporting the Department's decision to grant this exemption, refer to

the notice of proposed exemption published on March 13, 1995 at 60 FR

13457.

FOR FURTHER INFORMATION CONTACT: Ms. Jan D. Broady of the Department,

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

Paloma Securities L.P. (Paloma) and Boston Global Advisors, Inc. (BGA)

Located in Boston, Massachusetts

[Prohibited Transaction Exemption 95-49;

Application No. D-09660]

Exemption

The restrictions of sections 406(a)(1)(A) through (D) and 406(b)(1)

and (2) of the Act and the sanctions resulting from the application of

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

(E) of the Code, shall not apply to the lending of securities to Paloma

by employee benefit plans (including commingled investment funds

holding plan assets) for which BGA, an affiliate of Paloma, acts as

securities lending agent (or sub-agent) and to the receipt of

compensation by BGA in connection with these transactions, provided

that the following conditions are met:

1. Neither BGA, Paloma nor an affiliate of either has discretionary

authority or control with respect to the investment of the plan assets

involved in the transaction, or renders investment advice (within the

meaning of 29 CFR 2510.3-21(c) with respect to those assets;

2. Any arrangement for BGA to lend plan securities to Paloma in

either an agency or sub-agency capacity will be approved in advance by

a plan fiduciary who is independent of Paloma and BGA;

3. A plan may terminate the agency or sub-agency arrangement at any

time without penalty on five business days notice;

4. The plan will receive from Paloma (either by physical delivery

or by book entry in a securities depository, wire transfer or similar

means) by the close of business on or before the day the loaned

securities are delivered to Paloma, collateral consisting of cash,

securities issued or guaranteed by the U.S. Government or its agencies

or instrumentalities, or irrevocable bank letters of credit issued by a

person other than Paloma or an affiliate thereof, or any combination

thereof, or other collateral permitted under PTE 81-6, having, as of

the close of business on the preceding business day, a market value

initially equal to at least 102 percent of the market value of the

loaned securities and, if the market value of the collateral falls

below 100 percent, Paloma will deliver additional collateral on the

following day such that the market value of the collateral will again

equal 102 percent;

5. All procedures regarding the securities lending activities will

at a minimum conform to the applicable provisions of Prohibited

Transaction Exemptions (PTEs) 81-6 and 82-63;

6. Paloma will indemnify the plan against any losses due to its use

of the borrowed securities;

7. The plan will receive the equivalent of all distributions made

to holders of the borrowed securities during the term of the loan,

including, but not limited to, cash dividends, interest payments,

shares of stock as a result of stock splits and rights to purchase

additional securities, or other distributions;

8. Prior to any plan's approval of the lending of its securities to

Paloma, a copy of this exemption, (and the notice of pendency) will be

provided to the plan; and

9. Only plans with total assets having an aggregate market value of

at least $50 million will be permitted to lend securities to Paloma.

Written Comments

The applicant submitted the following comments regarding the notice

of pendency.

The applicant suggests that the last sentence of paragraph 18 of

the notice of pendency which stated that, ``BGA will lend securities to

requesting borrowers on a first come, first served basis, as a means of

assuring uniformity of treatment among borrowers,'' needs further

clarification. The applicant suggests that this sentence should have

been deleted and the following paragraph should have been inserted in

its place, ``[w]hile BGA will normally lend securities to requesting

borrowers on a first come, first served basis, as a means of assuring

uniformity of treatment among borrowers, it should be recognized that

in some cases it may not be possible to adhere to a first come, first

served allocation. This can occur, [[Page 33004]] for instance, where:

(a) The credit limit established for such borrower by BGA and/or the

client-plan has already been satisfied; (b) the ``first in line''

borrower is not approved as a borrower by the particular client- plan

whose securities are sought to be borrowed; or (c) the ``first in

line'' borrower cannot be ascertained, as an operational matter,

because several borrowers spoke to different BGA representatives at or

about the same time with respect to the same security. In situations

(a) and (b), loans would normally be effected with the ``second in

line.'' In situation (c), securities would be allocated equitably among

all eligible borrowers.'' The Department concurs with this comment.

The applicant further represents that, pursuant to discussions with

the Department subsequent to the publication of the Proposal, it will

make the following commitments with respect to the exempted

transactions. BGA shall make and retain, for six (6) months, tape

recordings evidencing all securities loan transactions with Paloma.

Also, if requested by the lending customer, BGA shall provide daily

confirmations of securities lending transactions; and BGA shall provide

to lending customers monthly account reports, or if requested by the

customer, weekly or daily reports, setting forth for each transaction

made or outstanding during the relevant reporting period, the loaned

securities, the related collateral, rebates and loan premiums and such

other information in such format as shall be agreed to by the parties.

Accordingly, after giving full consideration to the entire record,

including the written comment from the applicant, the Department has

decided to grant the exemption, as described and concurred in above. In

this regard, the comment letter submitted by the applicant to the

Department has been included as part of the public record of the

exemption application. The complete application file, including all

supplemental submissions received by the Department, is made available

for public inspection in the Public Documents Room of the Pension and

Welfare Benefits Administration, Room N-5638, U.S. Department of Labor,

200 Constitution Avenue N.W., Washington, D.C. 20210.

For a more complete statement of the facts and representations

supporting the Department's decision to grant this exemption, refer to

the notice of proposed exemption published on April 14, 1995, at 60 FR

19086.

For Further Information Contact: Louis Campagna of the Department,

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

The First National Bank of Boston and Its Affiliates (Collectively, the

Bank) Located in Boston, Massachusetts

[Prohibited Transaction Exemption 95-50; Application No. D-09682]

Section I--Exemption for Receipt of Fees

The restrictions of sections 406(a) and 406(b) of the Act and the

sanctions resulting from the application of section 4975 of the Code,

by reason of section 4975(c)(1) (A) through (F) of the Code, shall not

apply as of April 1, 1994 to: (1) The receipt by the Bank of fees from

the 1784 Funds (the Funds), investment companies registered under the

Investment Company Act of 1940 (the 1940 Act), for acting as an

investment adviser to the Funds in connection with the investment by

plans for which the Bank serves as a fiduciary (the Client Plans) in

shares of the Funds; and (2) the receipt and retention of fees by the

Bank from the Funds for acting as custodian and accountant to the Funds

as well as for any other services to the Funds which are not investment

advisory services (i.e. ``secondary services'' as defined in Section

III(h) below) in connection with the investment by the Client Plans in

shares of the Funds, provided that the following conditions and the

General Conditions of Section II below are met:

(a) No sales commissions are paid by the Client Plans in connection

with the purchase or sale of shares of the Funds and no redemption fees

are paid in connection with the sale of shares by the Client Plans to

the Funds.

(b) The price paid or received by a Client Plan for shares in a

Fund is the net asset value per share at the time of the transaction,

as defined in Section III(e), and is the same price which would have

been paid or received for the shares by any other investor at that

time.

(c) Neither the Bank nor an affiliate, including any officer or

director of the Bank, purchases or sells shares of the Funds to any

Client Plan.

(d) Each Client Plan receives a credit, through a cash rebate, of

such Plan's proportionate share of all fees charged to the Funds by the

Bank for investment advisory services, including any investment

advisory fees paid by the Bank to third party sub-advisors, no later

than one business day after the receipt of such fees by the Bank. The

crediting of all investment advisory fees to the Client Plans by the

Bank is audited by an independent accounting firm on at least an annual

basis to verify the proper crediting of the fees to each Client Plan.

(e) The combined total of all fees received by the Bank for the

provision of services to a Client Plan, and in connection with the

provision of services to the Funds in which the Client Plan may invest,

are not in excess of ``reasonable compensation'' within the meaning of

section 408(b)(2) of the Act.\7\

\7\In addition, the Department notes that Section 404(a) of the

Act requires, among other things, that a fiduciary of a plan act

prudently, solely in the interest of the plan's participants and

beneficiaries, and for the exclusive purpose of providing benefits

to participants and beneficiaries when making investment decisions

on behalf of a plan. Thus, the Department believes that the Bank

should ensure, prior to any investments made by a Client Plan for

which it acts as a trustee or investment manager, that all fees paid

by the Funds, including fees paid to parties unrelated to the Bank

and its affiliates, are reasonable. In this regard, the Department

is providing no opinion as to whether the total fees to be paid by a

Client Plan to the Bank, its affiliates, and third parties under the

arrangements described herein would be either reasonable or in the

best interests of the participants and beneficiaries of the Client

Plans.

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(f) The Bank does not receive any fees payable pursuant to Rule

12b-1 under the 1940 Act in connection with the transactions.

(g) The Client Plans are not employee benefit plans sponsored or

maintained by the Bank.

(h) A second fiduciary acting for the Client Plan which is

independent of and unrelated to the Bank (the Second Fiduciary)

receives, in advance of any initial investment by the Client Plan in a

Fund, full and detailed written disclosure of information concerning

the Funds, including but not limited to:

(1) A current prospectus for each Fund in which a Client Plan is

considering investing;

(2) A statement describing the fees for investment advisory or

similar services, any secondary services as defined in Section III(h),

and all other fees to be charged to or paid by the Client Plan and by

the Funds, including the nature and extent of any differential between

the rates of such fees;

(3) The reasons why the Bank may consider such investment to be

appropriate for the Client Plan;

(4) A statement describing whether there are any limitations

applicable to the Bank with respect to which assets of a Client Plan

may be invested in the Funds, and if so, the nature of such

limitations; and

(5) Upon request of the Second Fiduciary, a copy of the proposed

exemption and/or a copy of the final exemption, once such documents are

published in the Federal Register.

(i) After consideration of the information described above in

[[Page 33005]] paragraph (h) of Section I, the Second Fiduciary

authorizes in writing the investment of assets of the Client Plan in

each particular Fund, the fees to be paid by such Fund to the Bank, and

the cash rebate to the Client Plan of fees received by the Bank from

the Funds for investment advisory services.

(j) All authorizations made by a Second Fiduciary regarding

investments in a Fund and the fees paid to the Bank are subject to an

annual reauthorization wherein any such prior authorization referred to

in paragraph (i) of Section I shall be terminable at will by the Client

Plan, without penalty to the Client Plan, upon receipt by the Bank of

written notice of termination. A form expressly providing an election

to terminate the authorization described in paragraph (i) above (the

Termination Form) with instructions on the use of the form must be

supplied to the Second Fiduciary no less than annually. The

instructions for the Termination Form must include the following

information:

(1) The authorization is terminable at will by the Client Plan,

without penalty to the Client Plan, upon receipt by the Bank of written

notice from the Second Fiduciary; and

(2) Failure to return the Termination Form will result in continued

authorization of the Bank to engage in the transactions described in

paragraph (i) of Section I on behalf of the Client Plan.

(k) The Second Fiduciary of each Client Plan invested in a

particular Fund receives full written disclosure, in a statement

separate from the Fund prospectus, of any proposed increases in the

rates of fees charged by the Bank to the Funds for secondary services

at least 30 days prior to the effective date of such increase,

accompanied by a copy of the Termination Form, and receives full

written disclosure in a Fund prospectus or otherwise of any increases

in the rates of fees charged by the Bank to the Funds for investment

advisory services even though such fees will be rebated as required by

paragraph (d) of Section I above.

(l) In the event that the Bank provides an additional secondary

service to a Fund for which a fee is charged or there is an increase in

the amount of fees paid by the Funds to the Bank for any secondary

services resulting from a decrease in the number or kind of services

performed by the Bank for such fees in connection with a previously

authorized secondary service, the Bank will, at least thirty days in

advance of the implementation of such additional service or fee

increase, provide written notice to the Second Fiduciary explaining the

nature and the amount of the additional service for which a fee will be

charged or the nature and amount of the increase in fees of the

affected Fund. Such notice shall be accompanied by the Termination

Form, as defined in Section III(i) below. However, if the Termination

Form has been provided to the Second Fiduciary pursuant to this

paragraph or paragraph (k) above, then the Termination Form need not be

provided again for an annual reauthorization pursuant to paragraph (j)

above unless at least six months has elapsed since the form was

provided in connection with the fee increase.

(m) On an annual basis, the Bank provides the Second Fiduciary of a

Client Plan investing in the Funds with:

(1) A copy of the current prospectus for the Funds and, upon such

fiduciary's request, a copy of the Statement of Additional Information

for such Funds which contains a description of all fees paid by the

Funds to the Bank;

(2) A copy of the annual financial disclosure report of the Funds

in which such Client Plan is invested, which includes information about

the Fund portfolios as well as audit findings of an independent

auditor, within 60 days of the preparation of the report; and

(3) Oral or written responses to inquiries of the Second Fiduciary

as they arise.

(n) All dealings between the Client Plans and the Funds are on a

basis no less favorable to the Client Plans than dealings with other

shareholders of the Funds.

Section II--General Conditions

(a) The Bank maintains for a period of six years the records

necessary to enable the persons described below in paragraph (b) of

Section II to determine whether the conditions of this exemption have

been met, except that: (1) A prohibited transaction will not be

considered to have occurred if, due to circumstances beyond the control

of the Bank, the records are lost or destroyed prior to the end of the

six-year period, and (2) no party in interest other than the Bank shall

be subject to the civil penalty that may be assessed under section

502(i) of the Act or to the taxes imposed by section 4975(a) and (b) of

the Code if the records are not maintained or are not available for

examination as required by paragraph (b) below.

(b)(1) Except as provided in paragraph (b)(2) and notwithstanding

any provisions of section 504(a)(2) and (b) of the Act, the records

referred to in paragraph (a) of Section II are unconditionally

available at their customary location for examination during normal

business hours by--

(i) Any duly authorized employee or representative of the

Department or the Internal Revenue Service,

(ii) Any fiduciary of the Client Plans who has authority to acquire

or dispose of shares of the Funds owned by the Client Plans, or any

duly authorized employee or representative of such fiduciary, and

(iii) Any participant or beneficiary of the Client Plans or duly

authorized employee or representative of such participant or

beneficiary;

(2) None of the persons described in paragraph (b)(1)(ii) and (iii)

shall be authorized to examine trade secrets of the Bank, or commercial

or financial information which is privileged or confidential.

Section III--Definitions

For purposes of this exemption:

(a) The term ``Bank'' means The First National Bank of Boston and

any affiliate thereof as defined below in paragraph (b) of Section III.

(b) An ``affiliate'' of a person includes:

(1) Any person directly or indirectly through one or more

intermediaries, controlling, controlled by, or under common control

with the person;

(2) Any officer, director, employee, relative, or partner in any

such person; and

(3) Any corporation or partnership of which such person is an

officer, director, partner, or employee.

(c) The term ``control'' means the power to exercise a controlling

influence over the management or policies of a person other than an

individual.

(d) The term ``Fund'' or ``Funds'' shall include the 1784 Funds,

each series thereof, or any other diversified open-end investment

company registered under the 1940 Act for which the Bank serves as an

investment adviser and may also serve as a custodian, Fund accountant,

transfer agent or provide some other ``secondary service'' (as defined

below in paragraph (h) of this Section) which has been approved by such

Funds.

(e) The term ``net asset value'' means the amount for purposes of

pricing all purchases and sales calculated by dividing the value of all

securities, determined by a method as set forth in the Fund's

prospectus and statement of additional information, and other assets

belonging to the Fund or portfolio of the Fund, less the liabilities

charged to each such portfolio or Fund, by the number of outstanding

shares.

(f) The term ``relative'' means a ``relative'' as that term is

defined in [[Page 33006]] section 3(15) of the Act (or a ``member of

the family'' as that term is defined in section 4975(e)(6) of the

Code), or a brother, a sister, or a spouse of a brother or a sister.

(g) The term ``Second Fiduciary'' means a fiduciary of a Client

Plan who is independent of and unrelated to the Bank. For purposes of

this exemption, the Second Fiduciary will not be deemed to be

independent of and unrelated to the Bank if:

(1) Such fiduciary directly or indirectly controls, is controlled

by, or is under common control with the Bank;

(2) Such fiduciary, or any officer, director, partner, employee, or

relative of the fiduciary is an officer, director, partner, employee or

affiliate of the Bank (or is a relative of such persons);

(3) Such fiduciary directly or indirectly receives any compensation

or other consideration for his or her own personal account in

connection with any transaction described in this exemption.

If an officer, director, partner, affiliate or employee of the Bank

(or relative of such persons), is a director of such Second Fiduciary,

and if he or she abstains from participation in (i) the choice of the

Client Plan's investment adviser, (ii) the approval of any such

purchase or sale between the Client Plan and the Funds, and (iii) the

approval of any change in fees charged to or paid by the Client Plan in

connection with any of the transactions described in Sections I and II

above, then paragraph (g)(2) of Section III shall not apply.

(h) The term ``secondary service'' means a service other than an

investment management, investment advisory, or similar service, which

is provided by the Bank to the Funds. However, for purposes of this

exemption, the term ``secondary service'' will not include any

brokerage services provided to the Funds by the Bank for the execution

of securities transactions engaged in by the Funds.

(i) The term ``Termination Form'' means the form supplied to the

Second Fiduciary which expressly provides an election to the Second

Fiduciary to terminate on behalf of a Client Plan the authorization

described in paragraph (j) of Section II. The Termination Form shall be

used at will by the Second Fiduciary to terminate an authorization

without penalty to the Client Plan and to notify the Bank in writing to

effect a termination by selling the shares of the Funds held by the

Client Plan requesting such termination within one business day

following receipt by the Bank of the form; provided that if, due to

circumstances beyond the control of the Bank, the sale cannot be

executed within one business day, the Bank shall have one additional

business day to complete such sale.

EFFECTIVE DATE: This exemption is effective as of April 1, 1994.

For a more complete statement of the facts and representations

supporting the Department's decision to grant this exemption, refer to

the notice of proposed exemption published on March 20, 1995 at 60 FR

14786.

WRITTEN COMMENTS AND MODIFICATIONS: The applicant submitted the

following comments and requests for modifications regarding the notice

of proposed exemption (the Proposal).

With respect to Section I(h) of the Proposal, the condition

requires that a Second Fiduciary receive, in advance of any investment

by the Client Plan in a Fund, full and detailed written disclosure of

information concerning the Funds. However, the applicant states that

the condition as written might be construed as requiring the disclosure

of such information before every investment thereafter in the same Fund

(i.e., if one reads ``any investment'' to mean ``each and every

investment''). The applicant requests that, in order to avoid confusion

on this point, the phrase ``* * * in advance of any investment'' be

changed to read ``* * * in advance of any initial investment''

(emphasis added). The Department concurs with the applicant's requested

clarification and has so modified the language of Section I(h) of the

Proposal.

With respect to Section I(i) of the Proposal, the applicant states

that this condition, which in general requires the Second Fiduciary for

each Client Plan to have authorized in writing the investment of assets

of the Client Plan in a particular Fund, begins with the clause ``[o]n

the basis of the information described above in paragraph (h) of

Section I.'' The applicant represents that while the Bank will be

providing the information required by Section I(h), and anticipates

that the Second Fiduciary will take such information into consideration

in determining whether to approve any investment in a Fund, the Bank

will not in every case be able to determine the precise basis on which

a Second Fiduciary has approved use of a Fund as an investment vehicle.

Thus, the applicant requests that this clause be either deleted or

otherwise clarified. In this regard, the Department concurs with the

applicant's requested clarification and has deleted the words ``[o]n

the basis of * * *'' in the opening clause of Section I(i) and has

substituted therefor the words ``[a]fter consideration of * * *''.

With respect to Section I(m)(2) of the Proposal, the condition

requires that the Bank provide the Second Fiduciary of a Client Plan

investing in the Fund with a copy of the ``* * * annual financial

disclosure report prepared by the Bank'' which includes information

about the Fund portfolios. The applicant requests that the information

referred to here should be clarified to mean the annual financial

reports of the Funds which are prepared by the Funds, not by the Bank.

In addition, the applicant requests that the condition be clarified to

require that only the annual reports of the Funds in which a Client

Plan is invested need to be sent to the Second Fiduciary for that

Client Plan. The Department concurs with the applicant's requested

clarification and has modified the language of Section I(m)(2) by

deleting the words ``* * * prepared by the Bank'' and substituting

therefor the words ``* * * of the Funds in which such Client Plan is

invested''.

With respect to Section III(d) of the Proposal, the applicant

states that the 1784 Funds is a Massachusetts business trust with

separate series recognized for tax purposes as a separate corporation,

but which collectively is not recognized as a corporation. Thus, the

applicant requests that the Department delete the word ``Inc.'' after

the reference to the 1784 Funds in the definition contained in Section

III(d). In addition, the applicant notes that references throughout the

Proposal to the ``Fund'' are in fact generally meant as references to

one or more of the separate series of the 1784 Funds. In this regard,

the applicant requests that the definition in Section III(d) indicate

that the term ``Fund'' or ``Funds'' ``* * * shall include the 1784

Fund, each series thereof, or any other * * *'' (emphasis added). The

Department concurs with the applicant's requested clarification and has

so modified the language of Section III(d) of the Proposal.

Finally, pursuant to telephone conversations with representatives

of the Department, the applicant has confirmed in writing that when the

Bank is engaged to provide investment advisory services for a Fund

under the requested exemption, such services will be performed by the

Bank or a third party sub-advisor retained by the Bank. The applicant

represents that no ``sub-advisor'' to the Bank will be retained

directly by a Fund. In this regard, the Bank states that the fees

payable by a Fund ultimately for the account of a sub-advisor to the

Bank will be rebated by the Bank to the Client Plans, as discussed in

the Proposal and required by Section I(d) above. [[Page 33007]]

Accordingly, based on the current exemption application file and

record, the Department has determined to grant the proposed exemption

as modified.

FOR FURTHER INFORMATION CONTACT: Mr. E. F. Williams of the Department,

telephone (202) 219-8194. (This is not a toll-free number.)

AT&T Corporation (AT&T), and AT&T Investment Corporation (ATTIMCO)

Located in New York, New York

[Prohibited Transaction Exemption 95-51; Exemption Application Nos.

D-09716 & D-09717]

Exemption

Part I--Exemption for Payment of Certain Fees to Asset Managers

The restrictions of section 406(b)(1) and (b)(2) of the Act and the

taxes imposed by section 4975 of the Code, by reason of section

4975(c)(1)(E) of the Code, shall not apply to the payment of

Performance Fees by an AT&T Investment Fund to an Asset Manager in

exchange for real estate management or advisory services rendered

pursuant to an Agreement, provided that the conditions set forth in

Parts II and III are satisfied.

Part II--General Conditions

(a) The Asset Manager is not an affiliate of AT&T and the terms of

any Performance Fee are approved in writing by AT&T.

(b) The terms of any Performance Fee shall be at least as favorable

to the AT&T Investment Fund as those obtainable in arm's-length

transactions between unrelated parties.

(c) No AT&T Trust shall allocate, in the aggregate, more than

twenty percent of its total assets to Arrangements which are the

subject of this exemption, determined at the time any such Arrangement

is established and at the time of any subsequent allocation of

additional assets (including the reinvestment of assets) to such an

Arrangement. The foregoing limitation shall not apply to an AT&T Plan

Assets Entity. However, that percentage of the Assets of an AT&T Plan

Assets Entity which is deemed to be ``plan assets'' of an AT&T Trust

invested therein shall be treated as assets of such AT&T Trust for the

purpose of applying the foregoing limitation to the AT&T Trust.

(d) AT&T shall receive the following written information with

respect to assets subject to this exemption (Assets):

(1) annual audited financial statements prepared by independent

certified public accountants approved by AT&T;

(2) quarterly and annual reports prepared by the Asset Manager

relating to the overall financial position of the Assets (Each such

report shall include a statement regarding the amount of fees paid to

the Asset Manager during the period covered by such report); and

(3) annual reports indicating the fair market value of the Assets

determined on the basis of the most recently available Independent

Valuations.

(e) The total fees paid to an Asset Manager shall constitute no

more than reasonable compensation.

(f) The Performance Fee shall be payable after Net Proceeds with

respect to the Assets exceed the Threshold Amount. The Threshold Amount

and the amount of the Performance Fee, expressed as a percentage (or

percentages) of the Net Proceeds in excess of the Threshold Amount (or

Threshold Amounts), shall be established by the Agreement. The

Threshold Amount for any Performance Fee shall include at least a

minimum rate of return to the AT&T Investment Fund, as described in

Part III, Section (q).

(g) The provisions of this paragraph (g) shall apply only where an

Asset Manager has discretion to sell Assets without prior approval of

AT&T. For any sale of an Asset which gives rise to the payment of a

Performance Fee to an Asset Manager prior to the Termination Date, the

sales price of the Asset shall be at least equal to a Target Amount in

order for the Asset Manager to sell the Asset and receive its

Performance Fee without further approval. If the proposed sales price

of the Asset is less than the applicable Target Amount, the proposed

sale shall be disclosed to and subject to the approval of AT&T, in

which event the Asset Manager shall be entitled to sell the Asset and

receive its Performance Fee. If the proposed sales price is less than

the applicable Target Amount and AT&T's approval is not obtained, the

Asset Manager shall retain the authority to sell the Asset, provided

that the Performance Fee that would have been payable to the Asset

Manager by reason of the sale of the Asset shall be paid only at the

termination of the Arrangement.

(h) In the event of termination of the Arrangement upon its

Termination Date, the Asset Manager shall be entitled to receive a

Performance Fee payable on the Termination Date. The amount of the

Performance Fee upon termination shall be determined by assuming a sale

for cash of the remaining Assets at their fair market value (determined

on the basis of Independent Valuations) and no reinvestment of such

cash in Assets subject to the Arrangement.

(i) In the event of the removal or resignation of an Asset Manager

prior to the Termination Date, the Asset Manager shall be entitled to

receive a Performance Fee payable on the Termination Date pursuant to

this paragraph (i). The Performance Fee shall be calculated on a

preliminary basis at the time of such removal or resignation by

assuming a sale for cash of the remaining Assets at their fair market

value (determined on the basis of Independent Valuations) and no

reinvestment of such cash in Assets subject to the Arrangements. As of

the Termination Date, the amount so determined on a preliminary basis

shall be multiplied by a fraction, the numerator of which is the sum

of: (1) The actual sales prices received by the AT&T Investment Fund on

disposition of all Assets sold after the date of the Asset Manager's

removal or resignation and prior to the Termination Date, and (2) in

the case of Assets which have not been sold prior to the Termination

Date, the value of the Assets as of the Termination Date (determined on

the basis of Independent Valuations), and the denominator of which is

the aggregate value of the Assets which was used in connection with the

preliminary determination of the Performance Fee at the time of removal

or resignation, provided that this fraction shall never exceed 1.0. The

resulting amount shall be the Performance Fee payable to the Asset

Manager upon the Termination Date.

(j) AT&T shall maintain or cause to be maintained with respect to

the Assets, for a period of six years, the records necessary to enable

the persons described in paragraph (k) of this Part II to determine

whether the conditions of this exemption have been met, except that (1)

a prohibited transaction will not be considered to have occurred if,

due to circumstances beyond the control of AT&T, the records are lost

or destroyed prior to the end of the six-year period, and (2) no party

in interest, other than AT&T, shall be subject to the civil penalty

that may be assessed under section 502(i) of the Act or to the taxes

imposed by section 4975 (a) and (b) of the Code if the records are not

maintained or are not available for examination as required by Part

III, Section (k) below.

(k) Notwithstanding any provisions of Section 504(a)(2) and 504(b)

of the Act, the records referred to in Section (j) of this Part II

shall be unconditionally available at their customary location for

examination during normal business hours by:

(1) any duly authorized employee or representative of the

Department or the Internal Revenue Service; [[Page 33008]]

(2) any contributing employer to any employee benefit plan the

assets of which are held in the AT&T Investment Fund which has entered

into the Arrangement or any duly authorized employee or representative

of such employer;

(3) any participant or beneficiary of any employee benefit plan the

assets of which are held in the AT&T Investment Fund or any duly

authorized representative of such participant or beneficiary; and

(4) nothing in this paragraph (k) shall authorize any of the

persons described in subsections (2) and (3) to examine any trade

secrets of AT&T or information which is privileged or confidential.

Part III--Definitions

(a) An ``affiliate'' of a person means:

(1) Any person directly or indirectly, through one or more

intermediaries, controlling, controlled by, or under common control

with the person;

(2) Any officer, director, employee, relative of, or partner of any

such person; and

(3) Any corporation or partnership of which such person is an

officer, director, partner or employee.

(b) The term ``Agreement'' means the investment management, trust

or other agreement entered into between an Asset Manager and AT&T for

the provision of real estate management or advisory services.

(c) The term ``Arrangement'' means a fee arrangement entered into

between AT&T and an Asset Manager pursuant to an Agreement providing

for the payment of Performance Fees to the Asset Manager by an AT&T

Investment Fund in exchange for real estate management or advisory

services.

(d) The term ``Asset Manager'' means any person or entity providing

real estate management or advisory services to an AT&T Investment Fund.

(e) The term ``Assets'' means assets of an AT&T Investment Fund

which are the subject of an Arrangement with an Asset Manager.

(f) The term ``AT&T'' means AT&T Corporation, AT&T Investment

Management Corporation and/or any Subsidiary.

(g) The term ``AT&T Investment Fund'' means an AT&T Trust or an

AT&T Plan Assets Entity.

(h) The term ``AT&T Plan Assets Entity'' means any group trust,

partnership or other entity (including without limitation the Telephone

Real Estate Equity Trust), the assets of which are deemed to be ``plan

assets'' by reason of the application of 29 C.F.R. 2510.3-101, but only

if (1) fifty percent or more of the interests in such entity are held

by one or more AT&T Trusts, and (2) AT&T is the named fiduciary or

manager of the assets of such entity.

(i) The term ``AT&T Trust'' means the AT&T Master Pension Trust or

any other trust (other than an AT&T Plan Assets Entity), one hundred

percent of the assets of which are assets of employee benefit plans

maintained by AT&T.

(j) The term ``control'' means the power to exercise a controlling

influence over the management or policies of a person other than an

individual.

(k) The term ``Independent Valuations'' means valuations based on

independent and objective third party sources acceptable to AT&T

(including without limitation NASDAQ, newspapers, or other general

publications, or brokers which are independent of the Asset Manager and

its affiliates), or, if such sources are not available with respect to

a particular asset or at the option of AT&T, valuations conducted by an

appraiser independent of the Asset Manager and its affiliates which has

been approved by AT&T; provided, however, that, solely for purposes of

the reports described in Part II, Section (d)(3) above, no such

appraisal will be required with respect to any Asset if AT&T

determines, in its sole discretion, that such an appraisal is

unnecessary.

(l) The term ``Net Proceeds'' means, with respect to an

Arrangement, the aggregate amount of cash and other assets (valued at

fair market value as determined on the basis of Independent Valuations)

which cease to be Assets which are subject to such Arrangement, in

accordance with the terms of the Agreement establishing such

Arrangement.

(m) The term ``Performance Fee'' means a fee which equals a pre-

specified percentage (or several pre-specified percentages) of all Net

Proceeds in excess of the Threshold Amount (or several Threshold

Amounts), subject to such limitations, if any, as AT&T may approve or

impose.

(n) The term ``Subsidiary'' means a corporation, partnership, or

other entity of which (or in which) fifty percent or more of:

(1) The combined voting power of all classes of stock entitled to

vote or the total value of shares of all classes of such corporation,

(2) the capital interest or profits interest of such partnership, or

(3) the beneficial interest of such other entity, is owned directly or

indirectly by AT&T Corporation or AT&T Investment Management

Corporation.

(o) The term ``Target Amount'' means a value assigned to each Asset

either (1) at the time the Asset becomes subject to the Arrangement, by

mutual agreement between the Asset Manager and AT&T, or (2) pursuant to

an objective formula approved by the Asset Manager and AT&T at the time

the Arrangement is established. However, in no event will the value be

less than the value of the Asset at the time the Asset becomes subject

to the Arrangement.

(p) The term ``Termination Date'' means the date, established in

the Agreement, on which the Arrangement will terminate by reason of the

passage of time, as the same may be amended from time to time with the

approval of AT&T.

(q) The term ``Threshold Amount'' means with respect to any

Arrangement an amount which equals one hundred percent of the AT&T

Investment Fund's capital invested in the Assets plus a pre- specified

annual compounded cumulative rate or rates of return, each of which is

at least a minimum rate of return determined as follows:

(1) A non-fixed rate which is a least equal to the rate of change

in the consumer price index (CPI) during the period from the time the

Assets become subject to the Arrangement until Net Proceeds equal or

exceed the applicable Threshold Amount; or

(2) a fixed rate which is at least equal to the average rate of

change in the CPI over some period of time specified in the Agreement,

which shall not exceed ten years.

EFFECTIVE DATE: This exemption is effective as of September 19, 1994,

the date on which the notice of proposed exemption was published in the

Federal Register.

For a more complete statement of the facts and representations

supporting this exemption, refer to the notice of proposed exemption

published on September 19, 1994 at 59 FR 47952.

FOR FURTHER INFORMATION CONTACT: Ronald Willett of the Department,

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

Toyota Motor Sales, U.S.A., Inc. Money Purchase Pension Plan for

Bargaining Unit Employees (the Plan) Located in Torrance, California

Exemption Application No. D-09875 Prohibited Transaction Exemption

95-52;

Exemption

The restrictions of sections 406(a) and 406 (b)(1) and (b)(2) of

the Act and the sanctions resulting from the application of section

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

the Code, shall not apply to the cash sale by the Plan (the Sale) of

group annuity contract No. GA-4564 (the [[Page 33009]] GAC) issued by

Mutual Benefit Life Insurance Company (Mutual Benefit), located in

Newark, New Jersey, to Toyota Motor Sales, U.S.A., Inc., a California

corporation, (the Employer), a party in interest with respect to the

Plan; provided that: (1) The Sale is a one-time transaction for cash;

(2) the Plan experiences no loss nor incurs any expense from the Sale;

and (3) the Plan receives as consideration from the Sale the greater of

either the fair market value of the GAC as determined by the trustee of

the Plan on the date of the Sale, or an amount that is equal to the

total funds expended by the Plan in acquiring and holding the GAC, plus

the amount of interest earned and accrued by the Plan on the GAC to the

date of the Sale, less all withdrawals from the Plan to the date of the

Sale, and less all advances made to the Plan by the Employer to the

date of the Sale.

For a more complete statement of the facts and representations

supporting the Department's decision to grant this exemption refer to

the notice of proposed exemption published on April 27, 1995, at 60 FR

20766.

WRITTEN COMMENTS: With respect to the Notice of Proposed Exemption, the

applicant noted that the last sentence in the penultimate paragraph of

Section 4 under the Summary of Facts and Representations represents

that the fair market value of the GAC is $2,349,840, as of September

30, 1994. The applicant believes that the fair market value of the GAC,

if ascertainable, is considerably lower because of the rehabilitation

proceedings affecting Mutual Benefit, which significantly restrict the

withdrawal and payment provisions of the GAC.

The applicant also noted that had the Sale taken place on September

30, 1994, the Plan would have been paid approximately $2,349,840, which

is the amount that would have been determined in accordance with the

terms and provisions of the Proposed Exemption as of that date. Since

the Sale did not take place on September 30, 1994, the Plan will

receive as consideration an amount determined on the date of the Sale

in accordance with the terms and provisions of the Proposed Exemption.

FOR FURTHER INFORMATION CONTACT: Mr. C.E. Beaver of the Department,

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

Bob Murphy, Inc. Proft Sharing Plan (the Plan) Located in Boynton

Beach, FL

[Prohibited Transaction Exemption 95-53; Exemption Application No.

D-09949]

Exemption

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 certain works of art (the Art

Work) by the Plan to Robert J. Murphy, Jr., a disqualified person with

respect to the Plan.8

8Because Mr. Murphy and his spouse, Gail F. Murphy, 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.

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

This exemption is conditioned upon the following requirements: (1)

All terms and conditions of the sale are at least as favorable to the

Plan as those obtainable in an arm's length transaction between

unrelated parties; (2) the sale is a one-time cash transaction; (3) the

Plan is not required to pay any commissions, costs or other expenses in

connection with the sale; and (4) the Plan receives a sales price equal

to the fair market value of the Art Work on the date of the sale as

determined by a qualified, independent appraiser.

For a more complete statement of the facts and representations

supporting the Department's decision to grant this exemption, refer to

the notice of proposed exemption published on May 10, 1995 at 60 FR

24902.

FOR FURTHER INFORMATION CONTACT: Ms. Jan D. Broady of the Department,

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

Employees' Thrift Plan of Columbia Gas System (the Plan) Located in

Wilmington, Delaware

[Exemption Application No. D-09959 Prohibited Transaction Exemption

95-54]

Exemption

The restrictions of sections 406(a) and 406 (b)(1) and (b)(2) of

the Act and the sanctions resulting from the application of section

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

the Code, shall not apply to: (1) The loan of funds (the Loan) to the

Plan by the Columbia Gas System, Inc., the sponsor of the Plan, and its

wholly-owned subsidiary, Columbia Gas Transmission Corporation, with

respect to the Guaranteed Investment Contract No. 61969 (the GIC)

issued by Confederation Life Insurance Company of Canada

(Confederation); and (2) the potential repayment by the Plan of the

Loan upon the receipt by the Plan of payments under the GIC; provided

the following conditions are satisfied: (a) No interest and/or expenses

are paid by the Plan in connection with the Loan; (b) all the terms and

conditions of the proposed Loan are no less favorable to the Plan than

those which the Plan could obtain in an arm's-length transaction with

an unrelated party; (c) the Loan will be the accumulated book value of

the GIC as of August 12, 1994, less any amounts received by the Plan

from Confederation since August 12, 1994; (d) the repayment of the Loan

will not exceed the total amount of the Loan; (e) the repayment of the

Loan by the Plan will be restricted to funds paid to the Plan under the

GIC by Confederation, or State Guaranty Funds, or other third-party

sources; (f) the repayment of the Loan is waived to the extent the Loan

exceeds the proceeds the Plan receives from the GIC; and (g) any

proceeds or future interest credited under the GIC after August 12,

1994, in accordance with the Rehabilitation Plan by the State of

Michigan, will be allocated and disbursed to the affected participants

of the Plan.

For a more complete statement of the facts and representations

supporting the Department's decision to grant this exemption refer to

the notice of proposed exemption published on April 27, 1995, at 60 FR

20771.

WRITTEN COMMENTS: With respect to the Notice of Proposed Exemption, the

applicant noted that item 2(c) of the first paragraph of the Proposed

Exemption did not take into account amounts received by the Plan since

August 12, 1994, from Confederation prior to the date the Loan is made.

The applicant states that Confederation has paid some limited amounts

on its GICs for certain withdrawal events and may pay some more funds

before the date of the Loan.

The applicant also noted that amounts received by the Plan from

Confederation since August 12, 1994, were not considered in determining

the amount of the Loan as described in the fourth sentence of Section 5

and item 6(c) in Section 6 of the Summary of Facts and Representations.

In consideration of the comments, item 2(c) of the Exemption is

changed to reflect that the Loan will be the accumulated book value of

the GIC as of August 12, 1994, less any amounts received by the Plan

from Confederation since August 12, 1994.

FOR FURTHER INFORMATION CONTACT: Mr. C.E. Beaver of the Department,

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

General Information

The attention of interested persons is directed to the following:

(1) The fact that a transaction is the subject of an exemption

under section [[Page 33010]] 408(a) of the Act and/or section

4975(c)(2) of the Code does not relieve a fiduciary or other party in

interest or disqualified person from certain other provisions to which

the exemptions 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) These exemptions are supplemental to and not in derogation of,

any other provisions of the Act and/or the Code, including statutory or

administrative exemptions and transactional rules. Furthermore, the

fact that a transaction is subject to an administrative or statutory

exemption is not dispositive of whether the transaction is in fact a

prohibited transaction; and

(3) The availability of these exemptions is 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, D.C., this 21st day of June, 1995.

Ivan Strasfeld,

Director of Exemption Determinations, Pension and Welfare Benefits

Administration, U.S. Department of Labor.

[FR Doc. 95-15521 Filed 6-23-95; 8:45 am]

BILLING CODE 4510-29-P