[Federal Register Volume 75, Number 193 (Wednesday, October 6, 2010)]
[Notices]
[Pages 61932-61957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24892]



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Part III





Department of Labor





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Employee Benefits Security Administration



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 Proposed Exemptions From Certain Prohibited Transaction Restrictions; 
Notice

  Federal Register / Vol. 75 , No. 193 / Wednesday, October 6, 2010 / 
Notices  

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DEPARTMENT OF LABOR

Employee Benefits Security Administration


Proposed Exemptions From Certain Prohibited Transaction 
Restrictions

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Notice of Proposed Exemptions.

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SUMMARY: This document contains notices of pendency before the 
Department of Labor (the Department) of proposed exemptions from 
certain of the prohibited transaction restrictions of the Employee 
Retirement Income Security Act of 1974 (ERISA or the Act) and/or the 
Internal Revenue Code of 1986 (the Code).
    This notice includes the following proposed exemptions: D-11576, 
Bank of America, NA et al.; D-11591, Citigroup Inc. and its affiliates 
(Citigroup), the Citigroup 401(k) Plan, the Citibuilder 401(k) Plan for 
Puerto Rico the (Citibuilder Plan) and collectively with the Citigroup 
401(k) Plan, the Participant Directed Plans, the Citigroup Pension Plan 
(and collectively with the Participant Directed Plans, the Plans) (the 
Applicants); and D-11611, The West Coast Bancorp 401(k) Plan (the 
Plan); et al.

DATES: All interested persons are invited to submit written comments or 
requests for a hearing on the pending exemptions, unless otherwise 
stated in the Notice of Proposed Exemption, within 45 days from the 
date of publication of this Federal Register Notice.

ADDRESSES: Comments and requests for a hearing should state: (1) The 
name, address, and telephone number of the person making the comment or 
request, and (2) the nature of the person's interest in the exemption 
and the manner in which the person would be adversely affected by the 
exemption. A request for a hearing must also state the issues to be 
addressed and include a general description of the evidence to be 
presented at the hearing.
    All written comments and requests for a hearing (at least three 
copies) should be sent to the Employee Benefits Security Administration 
(EBSA), Office of Exemption Determinations, Room N-5700, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210. Attention: Application No. ----, stated in each Notice of 
Proposed Exemption. Interested persons are also invited to submit 
comments and/or hearing requests to EBSA via e-mail or FAX. Any such 
comments or requests should be sent either by e-mail to: 
``[email protected]'', or by FAX to (202) 219-0204 by the end of 
the scheduled comment period. The applications for exemption and the 
comments received will be available for public inspection in the Public 
Documents Room of the Employee Benefits Security Administration, U.S. 
Department of Labor, Room N-1513, 200 Constitution Avenue, NW., 
Washington, DC 20210.
    Warning: If you submit written comments or hearing requests, do not 
include any personally-identifiable or confidential business 
information that you do not want to be publicly-disclosed. All comments 
and hearing requests are posted on the Internet exactly as they are 
received, and they can be retrieved by most Internet search engines. 
The Department will make no deletions, modifications or redactions to 
the comments or hearing requests received, as they are public records.

SUPPLEMENTARY INFORMATION:

Notice to Interested Persons

    Notice of the proposed exemptions will be provided to all 
interested persons in the manner agreed upon by the applicant and the 
Department within 15 days of the date of publication in the Federal 
Register. Such notice shall include a copy of the notice of proposed 
exemption as published in the Federal Register and shall inform 
interested persons of their right to comment and to request a hearing 
(where appropriate).
    The proposed exemptions were requested in applications filed 
pursuant to section 408(a) of the Act and/or section 4975(c)(2) of the 
Code, and in accordance with procedures set forth in 29 CFR Part 2570, 
Subpart B (55 FR 32836, 32847, August 10, 1990). Effective December 31, 
1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 
(1996), transferred the authority of the Secretary of the Treasury to 
issue exemptions of the type requested to the Secretary of Labor. 
Therefore, these notices of proposed exemption are issued solely by the 
Department.
    The applications contain representations with regard to the 
proposed exemptions which are summarized below. Interested persons are 
referred to the applications on file with the Department for a complete 
statement of the facts and representations.

Bank of America, NA et al. Located in Charlotte, North Carolina. 
Exemption Application Number D-11576

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Employee Retirement Income Security 
Act of 1974, as amended (ERISA or the Act), and section 4975(c)(2) of 
the Internal Revenue Code of 1986, as amended (the Code), and in 
accordance with the procedures set forth in 29 CFR Part 2570, Subpart B 
(55 FR 32836, 32847, August 10, 1990).\1\
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    \1\ For purposes of this proposed exemption, references to 
section 406 of ERISA should be read to refer as well to the 
corresponding provisions of section 4975 of the Code.
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Section I. Covered Transactions

    If the proposed exemption is granted, the restrictions of sections 
406(a) and 406(b) of the Act and the sanctions resulting from the 
application of 4975 of the Code, by reason of section 4975(c)(1)(A) 
through (F) of the Code, shall not apply: (a) Effective January 1, 
2009: (1) To the operation of the RPT Stable Value Agreements, pursuant 
to the terms thereof, and to the receipt of a fee by BANA in connection 
therewith; and (2) to transactions under the RPT Stable Value 
Agreements (the RPT Wrap-Related Transactions); (b) effective April 23, 
2009: (1) To the execution of the RPT Special Purpose Wrap Agreement; 
(2) to the operation of the RPT Special Purpose Wrap Agreement, 
pursuant to the terms thereof, and to the receipt of a fee by BANA in 
connection therewith; and (3) to transactions under the RPT Special 
Purpose Wrap Agreement (the Special Purpose Wrap-Related Transactions); 
and (c) effective January 1, 2009: (1) To the operation of the 
Separately Managed Account Wrap Agreements, pursuant to the terms 
thereof, and to the receipt of a fee by BANA in connection therewith; 
and (2) to transactions under the Separately Managed Account Wrap 
Agreements (the Separately Managed Account Wrap-Related Transactions), 
provided that the following conditions, as applicable, have been met.

Section II. Conditions Applicable to Transactions Described in Section 
I(a)

    (a) Effective June 1, 2009, B1ackRock Advisors may change the 
formula for calculating the Crediting Rate with respect to the Global 
Wrap Account or the Global Buy and Hold Account (either, a Global 
Account) only after obtaining prior approval from:
    (1) Each financial institution that has entered into a wrap 
agreement covering assets included in the applicable Global Account; 
and

[[Page 61933]]

    (2) The Independent Fiduciary, after BlackRock Advisors has 
provided the Independent Fiduciary with any information that the 
Independent Fiduciary has reasonably requested in determining whether 
to approve the proposed change in the Crediting Rate formula;
    (b) BANA may not reset a Crediting Rate attributable to a Global 
Account more frequently than on a monthly basis unless:
    (1) A crediting rate attributable to a non-BANA wrap agreement 
covering assets in the same Global Account is reset more frequently 
than on a monthly basis; and
    (2) BANA resets the Crediting Rate at the same time, and in the 
same manner, as such other non-BANA wrap agreement crediting rate;
    (c) Each financial institution entering into a wrap agreement 
covering assets included in a Global Account obtains information from 
BlackRock Advisors on a monthly basis regarding the investments 
included in such Global Account. This information must be sufficiently 
detailed to enable the financial institution to independently verify 
that the applicable Crediting Rate was calculated properly;
    (d) The fee received by BANA in connection with the BANA RPT Global 
Wrap Agreement or the BANA RPT Buy and Hold Wrap Agreement will be 
reasonable relative to market conditions and risks, as determined 
annually by the Independent Fiduciary. Notwithstanding the above, in no 
event shall the fee received by BANA under the BANA RPT Global Wrap 
Agreement or the BANA RPT Buy and Hold Wrap Agreement exceed the 
maximum percentage fee paid to any other financial institution pursuant 
to a wrap agreement covering assets in the applicable Global Wrap 
Account or the Global Buy and Hold Account, as relevant;
    (e) The Trustee may trigger immunization with respect to the BANA 
RPT Global Wrap Agreement only if:
    (1) The Trustee triggers immunization with respect to another wrap 
agreement covering assets in the Global Wrap Account immediately prior 
to, or at the same time as, the Trustee triggers immunization with 
respect to the BANA RPT Global Wrap Agreement; or
    (2) A financial institution not affiliated with BANA triggers 
immunization with respect to assets in the Global Wrap Account 
immediately prior to, or at the same time as, the Trustee triggers 
immunization with respect to the BANA RPT Global Wrap Agreement; or
    (3) The Trustee determines that BANA is no longer financially 
responsible and the Independent Fiduciary determines that immunization 
is in the interests of Plans invested in RPT;
    (f) Assets held in RPT will be valued at their current fair market 
value on a daily basis utilizing the following BlackRock firm-wide 
approved valuation process:
    (1) Valuations will be performed without regard to whether the 
security is held in RPT or another account or commingled vehicle 
advised by BlackRock;
    (2) Valuations will be based on the price that may be obtained in a 
current arm's-length sale to an unrelated third party;
    (3) BlackRock will first obtain prices for securities from 
independent third-party sources, including index providers, broker-
dealers and independent pricing services. BlackRock will maintain a 
hierarchy that prioritizes pricing sources by asset class or type and 
will value securities based on the price generated by the highest 
priority source. The hierarchy may vary by asset class or type, but not 
for a particular security;
    (4) If no third-party sources are available to value a security or 
the price generated by the third-party falls outside specified 
statistical norms and after review BlackRock determines that such price 
is not reliable, BlackRock will value the security using an analytic 
methodology in accordance with its written valuation policy. If 
BlackRock values a security using such analytic methodology, the 
Independent Fiduciary will review that methodology and valuation and 
will obtain its own valuation if it deems appropriate; and
    (5) Values determined in accordance with (1) through (4) above will 
be provided to each financial institution that has entered into a wrap 
agreement covering assets in the Global Wrap Account or the Global Buy 
and Hold Account, as the case may be;
    (g) Each financial institution that has entered into a wrap 
agreement covering assets in the Global Wrap Account and/or the Global 
Buy and Hold Account, including BANA, may raise an objection regarding 
a particular security's valuation, regardless of the source of such 
valuation. Once an objection is raised, wrap providers other than BANA 
may determine a new valuation for such security and BANA must accept 
this new valuation, provided that BANA is given reasonably satisfactory 
documentation supporting the new valuation;
    (h) Prior to a Plan sponsor's decision to include RPT as an 
investment option for its Plan's participants, the Trustee will provide 
the Plan sponsor with the following:
    (1) RPT's Declaration of Trust (as amended and restated as of April 
23, 2009, and as may be further amended from time to time);
    (2) A purchase agreement to be entered into by the Plan fiduciary 
and the Trustee;
    (3) Upon request, a copy of the Annual Report for RPT and a fact 
sheet describing RPT's investment objective and strategy and a 
performance analysis; and
    (4) A copy of this proposed exemption or, if granted, a copy of the 
final exemption;
    (i) The Trustee will provide the following ongoing disclosures to 
Plan fiduciaries regarding a Plan's investment in RPT:
    (1) The Annual Report for RPT; and
    (2) The Plan's Investment Summary and Accounting;
    (j) Plan participants will be provided the following disclosures 
regarding their investment in RPT:
    (1) Prior to and following their initial investment, information 
describing the investment objectives and performance of RPT; and
    (2) A statement, delivered at least quarterly, that sets forth the 
value of the participant's account contributions, withdrawals, 
distributions, loans and change in value since the prior statement;
    (k) The Independent Fiduciary must receive a copy of any RPT Stable 
Value Agreement amendment prior to the effective date of such 
amendment. The Independent Fiduciary must review and approve the 
amendment prior to its implementation, except that no such review and 
approval shall be required for an amendment that is purely ministerial 
in nature;
    (l) The dollar amount of Global Wrap Account assets covered by the 
BANA RPT Global Wrap Agreement shall not exceed 50% of the total assets 
held in such Account, and the terms associated with the BANA RPT Global 
Wrap Agreement at the time such Agreement was entered into, amended, 
modified or renewed shall be no less favorable to RPT than the terms 
associated with comparable agreements with unrelated parties;
    (m) The dollar amount of Global Buy and Hold Account assets covered 
by the BANA RPT Buy and Hold Wrap Agreement shall not exceed 60% of the 
total assets held in such Account, and the terms associated with the 
BANA RPT Buy and Hold Wrap Agreement at

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the time such Agreement was entered into, amended, modified or renewed 
shall be no less favorable to RPT than the terms associated with 
comparable agreements with unrelated parties; and
    (n) Any RPT Wrap-Related Transaction that involves: (1) the 
exercise by BANA, the Trustee, or BlackRock Advisors of their rights 
under the RPT Stable Value Agreements; or (2) the performance by BANA, 
the Trustee, or BlackRock of their obligations under the RPT Stable 
Value Agreements, shall be subject to prior review and approval by the 
Independent Fiduciary if such exercise or performance affects the 
Crediting Rate or would otherwise have an adverse impact on the book 
value of a participant's or beneficiary's investment in RPT.

Section III. Conditions Applicable to Transactions Described in Section 
I(b)

    (a) Below Investment Grade Securities will be transferred 
automatically to a RPT account (the Type D1 Account) and covered by the 
RPT Special Purpose Wrap Agreement. The RPT Special Purpose Wrap 
Agreement shall cover up to in the aggregate $200 million of the 
following:
    (1) Book value of Downgraded Securities that have not been sold; 
and/or
    (2) Aggregate unamortized realized losses with respect to sold 
Downgraded Securities;
    (b) The Minimum Ratio shall be maintained;
    (c) The total book value of the assets included in the Type D1 
Account and covered by the RPT Special Purpose Wrap, including the 
Permitted Securities, will not exceed $700 million without the prior 
written consent of the Trustee, BlackRock Advisors, BANA and the 
Independent Fiduciary;
    (d) The crediting rate with respect to the Type D1 Account (the 
Type D1 Account Crediting Rate) shall be 0.00% at times when there are 
unamortized losses (whether realized or unrealized) attributable to 
Downgraded Securities in the Type D1 Account, calculated in accordance 
with the provisions of the RPT Special Purpose Wrap Agreement. In the 
event there are no unamortized losses (i.e., neither realized nor 
unrealized) recorded to the Type D1 Account which relate to Downgraded 
Securities, the Type D1 Account Crediting Rate shall be determined in 
accordance with a formula that has been reviewed by the Independent 
Fiduciary;
    (e) Effective June 1, 2009, BlackRock Advisors may change the 
formula for calculating the Type D1 Account Crediting Rate only after 
obtaining prior approval from BANA and the Independent Fiduciary. 
BlackRock Advisors shall provide the Independent Fiduciary with any 
information it may reasonably request in determining whether to approve 
a proposed change in the Type D1 Account Crediting Rate formula;
    (f) The Type D1 Account Crediting Rate will not be reset more 
frequently than on a monthly basis;
    (g) Permitted Securities will have a maximum duration of 3.5 years 
at the time of purchase;
    (h) The fee charged by BANA for the RPT Special Purpose Wrap will 
be reasonable relative to market conditions and risks, as determined 
annually by the Independent Fiduciary. Notwithstanding the above, in no 
event shall the fee received by BANA under the BANA RPT Global Wrap 
Agreement or the BANA RPT Buy and Hold Wrap Agreement exceed the 
maximum percentage fee paid to any other financial institution pursuant 
to a wrap agreement covering assets in the applicable Global Wrap 
Account or the Global Buy and Hold Account, as relevant, as determined 
annually by the Independent Fiduciary. Notwithstanding the above, in no 
event shall such fee exceed 15 basis points per annum of the total book 
value of assets included in the Type D1 Account;
    (i) Assets covered by the RPT Special Purpose Wrap Agreement will 
be valued in accordance with the methodology specified in section II(f) 
above, provided, however, that if the Independent Fiduciary obtains a 
valuation, such valuation will be binding on BANA;
    (j) The Trustee has the right to immunize the portfolio of 
securities included in the Type D1 Account only if BANA elects to 
terminate the RPT Special Purpose Wrap Agreement, or if BANA defaults 
under the RPT Special Purpose Wrap Agreement. If an immunization 
election becomes effective (the RPT Special Purpose Immunization Date), 
the RPT Special Purpose Wrap Agreement would terminate on the later of: 
(1) The date that is the number of years after the RPT Special Purpose 
Immunization Date which does not extend beyond the modified duration 
(as defined in the RPT Special Purpose Wrap Agreement) of the 
underlying assets on the RPT Special Purpose Immunization Date; or (2) 
the first date on which the market value of the underlying assets 
equals or exceeds the book value under the wrap agreement;
    (k) No Below Investment Grade Securities will be added to the RPT 
Special Purpose Wrap Agreement after April 23, 2011, unless otherwise 
agreed by BANA, the Trustee, and the Independent Fiduciary. No party to 
the RPT Special Purpose Wrap Agreement is obligated to amend or extend 
the RPT Special Purpose Wrap Agreement;
    (l) The tasks performed by the Independent Fiduciary will include:
    (1) Determining whether the RPT Special Purpose Wrap Agreement and 
the portfolio arrangement for the Type D1 Account (including the wrap 
fee payable to BANA, the Minimum Ratio, the prefunding of the RPT 
Special Purpose Wrap Agreement and the formula for resetting the Type 
D1 Account Crediting Rate) are prudent and in the best interest of 
participants and beneficiaries of Plans investing in RPT;
    (2) Reviewing valuations generated by BlackRock (in connection with 
the RPT Special Purpose Wrap Agreement) in any situation where 
BlackRock is unable to obtain a reliable valuation from independent 
third party sources. If, after such review, the Independent Fiduciary 
deems appropriate, the Independent Fiduciary will obtain an independent 
valuation which will be binding on the parties;
    (3) Reviewing and monitoring whether the Type D1 Account Crediting 
Rate is calculated correctly;
    (4) Monitoring the addition and removal of Below Investment Grade 
Securities and any changes in Permitted Securities in the Type D1 
Account, and opining, in a written report, whether such addition, 
removal or change is appropriate;
    (5) If BANA objects to the calculation by the Trustee or its 
designee of the Type D1 Account Crediting Rate or the information used 
to calculate the Type D1 Account Crediting Rate, the Independent 
Fiduciary will make a conclusive and binding determination regarding 
such calculation or information;
    (6) Determining whether to approve any proposed change to the Type 
D1 Account Crediting Rate formula, including any proposed adjustment to 
the duration component of the Type D1 Account Crediting Rate formula;
    (7) No later than April 30, 2011, working with BANA, BlackRock, and 
the Trustee to review and determine whether additional Below Investment 
Grade Securities may be transferred to the Type D1 Account and be 
covered by the RPT Special Purpose Wrap Agreement;
    (8) Making an initial and, thereafter, annual determination 
regarding whether the fee described in paragraph (h) of this section is 
reasonable relative to the specific attributes of the RPT Special 
Purpose Wrap Agreement;

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    (9) Making an annual determination regarding whether the continued 
maintenance of the RPT Special Purpose Wrap Agreement is appropriate 
and in the interest of Plans;
    (10) Making a monthly determination regarding whether the 
appropriate Type D1 Crediting Rate formula is being used; and
    (11) Reviewing and approving any amendment to a RPT Special Purpose 
Wrap Agreement consistent with paragraph (n) of this section;
    (m) Any Special Purpose Wrap-Related Transaction that involves: (1) 
The exercise by BANA, the Trustee, or BlackRock Advisors of their 
rights under the RPT Special Purpose Wrap Agreement; or (2) the 
performance by BANA, the Trustee, or BlackRock of their obligations 
under the RPT Special Purpose Wrap Agreement, shall be subject to prior 
review and approval by the Independent Fiduciary if such exercise or 
performance affects the Type D1 Crediting Rate or otherwise would have 
an adverse impact on the book value of a participant's or beneficiary's 
investment in RPT; and
    (n) The Independent Fiduciary must receive a copy of any RPT 
Special Purpose Wrap Agreement amendment prior to the effective date of 
such amendment. The Independent Fiduciary must review and approve the 
amendment prior to its implementation, except that no such review and 
approval shall be required for an amendment that is purely ministerial 
in nature.

Section IV. Conditions Applicable to Transactions Described in Section 
I(c)

    (a) Effective June 1, 2009, BlackRock Advisors may change the 
formula for calculating the Crediting Rate with respect to each 
Separately Managed Account Wrap Agreement only after obtaining prior 
approval from BANA and the Independent Fiduciary. BlackRock Advisors 
shall provide the Independent Fiduciary with any information it may 
reasonably request in determining whether to approve a proposed change 
in the Crediting Rate formula;
    (b) Effective June 1, 2009, the Crediting Rate will be reset no 
more frequently than on a monthly basis;
    (c) BANA will not receive a fee under the BANA Wal-Mart Separately 
Managed Wrap Agreement in excess of the maximum percentage fee received 
by any other Tier 3 Wrap Provider in the Wal-Mart Separately Managed 
Account; and BANA will not receive a fee under the BANA Hertz 
Separately Managed Wrap Agreement in excess of the maximum percentage 
fee received by any other financial institution that has entered into a 
wrap agreement covering assets in the Hertz Separately Managed Account;
    (d) Assets covered under each Separately Managed Account Wrap 
Agreement will be valued in accordance with the same methodology 
specified in section II(f) above; provided, however, that if BANA 
objects to the valuation of any asset, the Independent Fiduciary will 
make a binding determination of the value of the asset;
    (e) The tasks performed by the Independent Fiduciary will include:
    (1) Conducting a monthly review of the Crediting Rate, including, 
confirming: (A) The book value of the portfolio of assets wrapped by 
each Separately Managed Account Wrap Agreement; (B) the valuation of 
securities; (C) the duration of securities; (D) the market yield of 
securities; and (E) that the Crediting Rate formula was calculated 
properly;
    (2) Reviewing and approving any proposed amendment to a Separately 
Managed Wrap Agreement consistent with paragraph (i) below;
    (3) Reviewing any exercise of contract provisions by any of BANA, 
BlackRock Advisors or, in the case of the BANA Wal-Mart Separately 
Managed Wrap Agreement, the Trustee, and analyze its potential impact 
on investors;
    (4) Evaluating any changes to the fees paid to BANA under each 
Separately Managed Account Wrap Agreement to determine reasonableness 
relative to market conditions and risks; and
    (5) Providing quarterly reports to BlackRock Advisors and to the 
named fiduciaries of the Wal-Mart Plan and the Hertz Plan. These 
reports must certify that the Independent Fiduciary has reviewed the 
factors described above and state whether BlackRock Advisors has 
complied with all requirements of the contract. The Independent 
Fiduciary will inform the named fiduciaries of a Plan if it believes 
that BANA or BlackRock Advisors has taken any actions that are not in 
the best interests of the participants and beneficiaries in the Wal-
Mart Plan or the Hertz Plan, as relevant;
    (f) The Separately Managed Account Wrap Agreements shall authorize 
the Independent Fiduciary to:
    (1) Review and approve any proposed changes in the formula for 
calculating the Crediting Rate, prior to implementation of any such 
change;
    (2) If BlackRock Advisors generates its own valuation, review the 
valuation, and if the Independent Fiduciary deems appropriate, obtain 
an independent valuation, which shall be binding on the parties, 
subject to BANA's right to raise an objection to any valuation;
    (3) If BANA objects to the valuation of any asset, make a binding 
determination of the value of the asset;
    (g) The named fiduciaries (or their authorized representatives) for 
the Wal-Mart Plan have the right to terminate BlackRock Advisors, as 
investment manager for the Wal-Mart Separately Managed Account, on 90 
days' written notice. The named fiduciaries (or their authorized 
representatives) for the Hertz Plan have the right to terminate 
B1ackRock Advisors as investment manager for the Hertz Separately 
Managed Account, on 30 days' written notice;
    (h) Any Separately Managed Account Wrap-Related Transaction that 
involves: (1) The exercise by BANA, the Trustee, or BlackRock Advisors 
of their rights under a Separately Managed Account Wrap Agreement; or 
(2) the performance by BANA, the Trustee, or BlackRock of their 
obligations under a Separately Managed Wrap Agreement: shall be subject 
to prior review and approval by the Independent Fiduciary if such 
exercise or performance affects the Crediting Rate or otherwise would 
have an adverse impact on the book value of a participant's or 
beneficiary's investment in RPT;
    (i) The Independent Fiduciary must receive a copy of any amendment 
contemplated for a Separately Managed Wrap Agreement. The Independent 
Fiduciary must review and approve the amendment prior to its 
implementation, except that no such review and approval shall be 
required for an amendment that is purely ministerial in nature; and
    (j) BlackRock may not terminate a Separately Managed Account Wrap 
Agreement without the prior approval of the Independent Fiduciary.

Section V. General Conditions

    (a) BlackRock Advisors shall maintain in the United States the 
records necessary to enable the persons described in (b) below to 
determine whether the conditions of this exemption, if granted, were 
met, except that:
    (1) If the records necessary to enable the persons described in (b) 
below to determine whether the conditions of the exemption have been 
met are lost or destroyed, due to circumstances beyond the control of 
BlackRock Advisors, then no prohibited transaction will be considered 
to have occurred solely on the basis of the unavailability of those 
records; and
    (2) No party in interest other than BlackRock Advisors shall be 
subject to the civil penalty that may be assessed under section 502(i) 
of the Act or to the taxes imposed by sections 4975(a) and

[[Page 61936]]

(b) of the Code if the records have not been maintained or are not 
available for examination as required by paragraph (b) below;
    (b) Except as provided in paragraph (c) of this section V and 
notwithstanding the provisions of subsections (a)(2) and (b) of section 
504 of the Act, the records referred to in section V(a) are 
unconditionally available for examination during normal business hours 
at their customary location to the following persons or an authorized 
representative thereof:
    (1) Any duly authorized employee or representative of the 
Department or the Internal Revenue Service;
    (2) Any fiduciary of a Plan participating in RPT or the Hertz Plan 
or the Wal-Mart Plan;
    (3) Any participant or beneficiary of a Plan participating in RPT 
or the Hertz Plan or the Wal-Mart Plan; or
    (4) The Independent Fiduciary.
    (c) None of the persons described above in paragraphs (2), (3), and 
(4) of paragraph (b) of this section V shall be authorized to examine 
trade secrets of BlackRock, BANA, the Trustee or any of their 
Affiliates, or any commercial or financial information which is 
privileged or confidential. Should BlackRock Advisors refuse to 
disclose information on the basis that such information is exempt from 
disclosure, BlackRock Advisors shall, by the close of the thirtieth 
(30th) day following the request, provide written notice advising that 
person of the reason for the refusal and that the Department may 
request such information; and
    (d) Promptly following any publication of a final exemption in the 
Federal Register, the Trustee or BlackRock Advisors will provide a copy 
of the final exemption to the Plan sponsor of each Plan invested in 
RPT, and to the Plan sponsor of the Hertz Plan, and to the Plan sponsor 
of the Wal-Mart Plan.

Section VI. Definitions

    (a) The term Act means: The Employee Retirement Income Security Act 
of 1974, as amended;
    (b) The term Affiliate means: Any person, directly or indirectly, 
through one or more intermediaries, controlling, controlled by or under 
common control with such person;
    (c) The term BANA means: Bank of America, N.A. and its Affiliates;
    (d) The term BANA Hertz Separately Managed Wrap Agreement means: 
The agreement dated as of July 27, 2007 (and amended effective as of 
December 31, 2008) among BANA, BlackRock Advisors (as investment 
manager for a portion of the assets of the Hertz Plan), and the Bank of 
New York Mellon (the successor by operation of law to Mellon Bank N.A., 
and the trustee of the trust created pursuant to the Hertz Plan), as 
such agreement may be amended from time to time, pursuant to which BANA 
provides a book value benefit responsive facility with respect to a 
portion of the assets held in the Hertz Separately Managed Account;
    (e) The term BANA RPT Buy and Hold Wrap Agreement means: The 
agreement dated as of October 16, 1996, between Barclays Bank PLC and 
the Trustee (as assigned to BANA as of April 1, 1998, and amended 
effective as of December 31, 2008), as such agreement may be amended 
from time to time, pursuant to which BANA provides a book value benefit 
responsive facility with respect to an undivided portion of the assets 
held in the Global Buy and Hold Account;
    (f) The term BANA RPT Global Wrap Agreement means: The agreement 
dated as of May 1, 2004 (and amended effective as of December 31, 2008) 
between BANA and the Trustee, as such agreement may be amended from 
time to time, pursuant to which BANA provides a book value benefit 
responsive facility with respect to an undivided portion of the assets 
held in the Global Wrap Account;
    (g) The term BANA Wal-Mart Separately Managed Wrap Agreement means: 
The agreement dated as of August 19, 2003 (and amended effective as of 
December 31, 2008) between BANA and the Trustee, as such agreement may 
be amended from time to time, pursuant to which BANA provides a book 
value benefit responsive facility with respect to a portion of the 
assets held in the Wal-Mart Separately Managed Account;
    (h) The term Below Investment Grade Security means: Securities that 
cease to be covered by a benefit responsive contract in RPT (other than 
by the RPT Special Purpose Wrap Agreement) solely as a result of a 
downgrade in the credit rating of the security to below Baa3, BBB- or 
BBB- by Moody's Investors Services, Inc., Standard & Poor's Rating 
Group, or Fitch Ratings, respectively; provided, however, that a Below 
Investment Grade Security shall not include any security that is an 
Impaired Security;
    (i) The term BlackRock means: BlackRock, Inc.;
    (j) The term BlackRock Advisors means: BlackRock Investment 
Management, LLC and its Affiliates;
    (k) The term Code means: The Internal Revenue Code of 1986, as 
amended;
    (l) The term Crediting Rate means: The crediting rate described in 
sections II and IV that is used for purposes of determining the accrued 
interest to be added to the book value of an individual's account 
within RPT or the Separately Managed Accounts;
    (m) The term Downgraded Security means: A Below Grade Investment 
Security that is held in the Type D1 Account and covered by the RPT 
Special Purpose Wrap Agreement;
    (n) The term Global Buy and Hold Account means: The book account or 
sub-account maintained within RPT for purposes of identifying certain 
assets relating to the BANA RPT Buy and Hold Wrap Agreement;
    (o) The term Global Wrap Account means: The book account or sub-
account maintained within RPT for purposes of identifying certain 
assets relating to the BANA RPT Global Wrap Agreement;
    (p) The term Hertz Plan means: The Hertz Corporation Income Savings 
Plan;
    (q) The term Hertz Separately Managed Account means: The separately 
managed stable value account advised by BlackRock Advisors on behalf of 
the Hertz Plan;
    (r) The term Impaired Security means: (i) A security with respect 
to which the issuer or guarantor has failed to make one or more 
payments of principal or interest (after giving effect to any 
applicable grace period under the terms of such security or prescribed 
by any change in law, regulation, ruling or other governmental action); 
(ii) a security with respect to which the principal or interest has 
become due and payable before it otherwise would have been due or 
payable other than: (x) By reason of a call or other prepayment of such 
security made in accordance with its terms that does not constitute a 
default under such security, or (y) solely on account of any change in 
law, regulation, ruling or other governmental action; (iii) a security 
where the rate of interest thereon has been reset other than: (x) 
Pursuant to the original terms of such security, or (y) solely on 
account of any change in law, regulation, ruling or other governmental 
action; or (iv) a security with respect to which the issuer becomes 
insolvent or institutes or has instituted against it a proceeding 
seeking a judgment of insolvency or bankruptcy or any other relief 
under any bankruptcy or insolvency law or other similar law affecting 
creditor's rights;
    (s) The term Independent Fiduciary means an entity that is: (1) 
Experienced and knowledgeable in ERISA and the transactions and 
arrangements described herein; (ii) independent of and unrelated to 
BANA, Merrill,

[[Page 61937]]

BlackRock, and their Affiliates; and (iii) appointed to act on behalf 
of Plans investing in RPT or the Separately Managed Accounts with 
respect to the matters described herein. The Independent Fiduciary will 
not be deemed to be independent of and unrelated to BANA, Merrill, 
BlackRock, and their Affiliates if: (i) Such fiduciary directly or 
indirectly controls, is controlled by or is under common control with 
BANA, Merrill, or BlackRock; (ii) such fiduciary directly or indirectly 
receives any compensation or other consideration in connection with any 
transaction described in this exemption, if granted, other than for 
acting as an Independent Fiduciary in connection with the transactions 
described herein, provided that the amount or payment of such 
compensation is not contingent upon, or in any way affected by, the 
Independent Fiduciary's ultimate decision; and (iii) the annual gross 
revenue received by the Independent Fiduciary, during any year of its 
engagement, from BANA, Merrill, BlackRock, and any of their Affiliates, 
exceeds five percent (5%) of the Independent Fiduciary's annual gross 
revenue from all sources (for federal income tax purposes) for its 
prior tax year;
    (t) The term Minimum Ratio means: A ratio of 2.5 to 1.0 of market 
value of Permitted Securities to the total unamortized unrealized and 
realized losses with respect to Downgraded Securities;
    (u) The term Permitted Securities means any security that: (i) Is a 
U.S. Treasury debenture, a security issued by the Government National 
Mortgage Association or a security guaranteed by the Federal Deposit 
Insurance Corporation; and (ii) has a modified duration on the date of 
purchase by RPT of 3.5 years or less;
    (v) The term Plan means: An employee benefit plan within the 
meaning of and subject to Title I of the Act or an individual 
retirement account within the meaning of section 4975 of the Code;
    (w) The term RPT means: The Merrill Lynch Retirement Preservation 
Trust maintained by the Trustee;
    (x) The term RPT Special Purpose Wrap Agreement means: The 
agreement dated as of April 23, 2009, as amended, between BANA and the 
Trustee, pursuant to which BANA provides a book value benefit 
responsive facility with respect to an undivided portion of the assets 
held in the Type D1 Account;
    (y) The term RPT Stable Value Agreements means: The BANA RPT Global 
Wrap Agreement and the BANA RPT Buy and Hold Wrap Agreement;
    (z) The term Separately Managed Accounts means: The Hertz 
Separately Managed Account and the Wal-Mart Separately Managed Account;
    (aa) The term Separately Managed Account Wrap Agreements means: The 
BANA Wal-Mart Separately Managed Wrap Agreement and the BANA Hertz 
Separately Managed Wrap Agreement;
    (bb) The term Type D1 Account means: The book account maintained 
within RPT for purposes of identifying Downgraded Securities, including 
unamortized losses with respect to Downgraded Securities that have been 
sold, and Permitted Securities covered by the RPT Special Purpose Wrap 
Agreement;
    (cc) The term Tier 3 Wrap Provider means: A financial institution 
that has entered into a wrap agreement with respect to assets held in 
the Wal-Mart Separately Managed Account that will not be accessed for 
purposes of making benefit payments until after two tiers of buffer 
assets are accessed;
    (dd) The term Trustee means: Bank of America, N.A.;
    (ee) The term Wal-Mart Plan means: The Wal-Mart Profit Sharing and 
401(k) Plan and the Wal-Mart Puerto Rico Profit Sharing and 401(k) 
Plan;
    (ff) The term Wal-Mart Separately Managed Account means: The 
separately managed stable value account advised by BlackRock Advisors 
on behalf of the Wal-Mart Plan;
    (gg) The term Merrill means: Merrill Lynch & Co., Inc. and its 
Affiliates;
    (hh) The term RPT Wrap-Related Transaction means: (1) The 
determination, calculation of and adjustments to the Crediting Rate, 
and any changes to the Crediting Rate formula; (2) valuations of 
securities covered by the BANA RPT Stable Value Agreements; (3) payment 
of wrap fees and any changes to wrap fees; (4) the purchase and sale of 
any security covered by the RPT Stable Value Agreements; (5) BANA's or 
the Trustee's exercise of its right to immunize or terminate the RPT 
Stable Value Agreements; (6) amendments to the RPT Stable Value 
Agreements; and (7) any other exercise by BANA, the Trustee, or 
BlackRock Advisors of their rights, or any performance by BANA, the 
Trustee, or BlackRock of their obligations, under the Stable Value 
Agreements;
    (ii) The term Special Purpose Wrap-Related Transaction means: (1) 
The transfer of Below Investment Grade Securities to the Type D1 
Account; (2) the sale or transfer of Downgraded Securities out of the 
Type D1 Account; (3) the purchase and sale of certain other securities 
permitted to be held in the Type D1 Account; (4) transactions relating 
to maintenance of a minimum ratio of Permitted Securities and 
Downgraded Securities; (5) the determination, calculation of and 
adjustments to the Type D1 Account Crediting Rate and any changes to 
the Type D1 Account Crediting Rate formula; (6) valuations of 
securities covered by the RPT Special Purpose Wrap Agreement; (7) 
payment of and any changes to wrap fees; (8) BANA's or the Trustee's 
exercise of its right to immunize or terminate the RPT Special Purpose 
Wrap Agreement; (9) the entering into and amendment of the RPT Special 
Purpose Wrap Agreement; and (10) any exercise by BANA, the Trustee, or 
BlackRock Advisors of their rights, or any performance by BANA, the 
Trustee, or BlackRock of their obligations, under the RPT Special 
Purpose Wrap Agreement;
    (jj) The term Separately Managed Account Wrap-Related Transaction 
means: (1) The determination, calculation of and adjustments to the 
Crediting Rate, and any changes to the Crediting Rate formula; (2) 
valuations of securities covered by the Separately Managed Account Wrap 
Agreements; (3) payment of wrap fees and any changes to wrap fees; (4) 
the purchase and sale of any security covered by the Separately Managed 
Account Wrap Agreements; (5) BANA's or the Trustee's exercise of its 
right to terminate the Separately Managed Wrap Agreements; (6) 
amendments to the Separately Managed Wrap Agreements; and (7) any other 
exercise by BANA, the Trustee, or BlackRock Advisors of their rights, 
or any performance by BANA, the Trustee, or BlackRock of their 
obligations, under the Separately Managed Wrap Agreements.

Summary of Facts and Representations

1. Applicants

    A. Bank of America, NA (BANA). BANA is a wholly-owned indirect 
subsidiary of Bank of America Corporation (BAC). BANA is engaged in a 
general consumer banking, commercial banking and trust business, 
offering a wide range of commercial, corporate, international, 
financial market, retail and fiduciary banking services.
    B. Merrill Lynch & Co., Inc. (Merrill). Merrill is a holding 
company that, through its affiliates, provides broker-dealer, 
investment banking, financing, advisory, wealth management, insurance, 
lending and related products and services. Merrill's subsidiaries 
included Merrill Lynch Bank & Trust Co., FSB (MLTC). MLTC merged into 
BANA during the fourth quarter of 2009.

[[Page 61938]]

    C. BlackRock, Inc. (BlackRock). BlackRock is an investment 
management firm that, as of December 31, 2008, had approximately $1.307 
trillion in assets under management.
    D. Merrill/BAC Merger. On September 15, 2008, BAC and Merrill 
entered into an agreement and plan of merger pursuant to which, 
effective as of the closing of the transactions contemplated thereby, a 
new, wholly-owned subsidiary of BAC merged with and into Merrill (the 
Merrill/BAC Merger). The Merrill/BAC Merger closed on January 1, 2009, 
at which time Merrill became a wholly-owned subsidiary of BAC and an 
affiliate of BANA.
    E. Merrill/BlackRock Transaction. On September 29, 2006, Merrill 
contributed Merrill Lynch Investment Managers, LLC and various other 
assets and subsidiaries that comprised its investment management 
business to BlackRock. As a result of that transaction (the Merrill/
BlackRock Transaction), from September 29, 2006, though December 26, 
2008, Merrill held an approximate 49% ownership interest in BlackRock 
and held 45% of the outstanding voting securities of BlackRock. 
Pursuant to an exchange agreement between Merrill and BlackRock, dated 
as of December 26, 2008, Merrill reduced its voting interest in 
BlackRock to 4.9%. However, Merrill retained an approximate 49.5% 
equity interest in BlackRock.
    F. BlackRock/Barclays Acquisition. On December 1, 2009, BlackRock 
acquired Barclays Global Investors. As part of this transaction, 
Merrill Lynch's economic ownership of BlackRock was reduced to 34.2%. 
Merrill Lynch currently has a 3.4% voting interest in BlackRock.

2. The Application

    The application submitted by the Applicants includes the following: 
An overview of stable value funds; a description of the Retirement 
Preservation Trust (RPT) stable value fund; a request for retroactive 
and prospective exemptive relief for the operation of, and certain 
transactions under, two stable value wrap agreements entered into 
between MLTC and BANA with respect to certain assets of the RPT; a 
request for retroactive and prospective exemptive relief for the 
execution and operation of, and certain transactions under, a ``special 
purpose'' wrap agreement entered into between MLTC and BANA with 
respect to certain assets of RPT; a request for retroactive and 
prospective exemptive relief for the operation of and transactions 
under two stable value wrap agreements entered into by BANA with 
respect to single plan separately managed accounts advised by BlackRock 
Advisers, a BlackRock affiliate, on behalf of the Hertz Plan and the 
Wal-Mart Plan; and numerous representations by Fiduciary Counselors 
Inc., who is currently the independent fiduciary (the Independent 
Fiduciary) responsible for representing the interests of the Hertz 
Plan, the Wal-Mart Plan, and employee benefit plans (Plans) investing 
in RPT for purposes of the transactions described in this proposed 
exemption, if granted.
Paragraphs 3-9. Applicants' Overview of Stable Value Funds
    3. Stable value funds are intended as conservative investment 
options that provide preservation of principal, liquidity and current 
income at levels that are typically higher than those provided by money 
market funds. To achieve this objective, stable value funds invest in 
traditional and synthetic guaranteed investment contracts (GICs). A 
traditional GIC is an investment contract that guarantees payments on 
deposits at a specified rate and is typically purchased through an 
insurance company. In a synthetic GIC structure, the plan or plan asset 
fund retains title to an underlying portfolio of fixed income assets 
and purchases a ``wrap agreement'' from a bank, insurance company or 
other financial institution. Synthetic GICs permit diversification away 
from the credit risk of an insurance company and provide an opportunity 
to achieve higher returns through an actively managed portfolio.
    4. Under the terms of standard wrap agreements, the wrap provider 
agrees that payments to participants upon retirement, death, 
disability, employment termination, hardship or transfer to a non-
competing investment alternative (generally referred to as ``benefit 
responsive payments'') will be made based on ``book value,'' regardless 
of fluctuations in the market value of the underlying portfolio of 
assets. Book value generally represents the value of deposits (i.e., 
the principal amount invested) plus interest (accumulated at a 
``credited rate'') minus withdrawals and minus adjustments for assets 
that become impaired.\2\ This provision of book value accounting at the 
participant level is the core feature of a stable value fund. However, 
not all payments to participants are made at book value. For example, 
withdrawals arising from a plan's decision to transfer to a competing 
investment alternative, or certain actions initiated by a plan sponsor, 
may be paid at market value, which could be less than book value 
depending on the performance of the underlying investment portfolio.
---------------------------------------------------------------------------

    \2\ The Applicants describe an impaired security as including a 
security with respect to which the issuer or guarantor has failed to 
make one or more payments of principal or interest.
---------------------------------------------------------------------------

    5. A wrap agreement does not guarantee that the book value of the 
wrapped assets will increase by a specified rate of return. Rather, 
interest is credited to the underlying portfolio based on a formula 
that is designed to equal the actual total rate of return on the 
underlying portfolio over time, while smoothing the gains and losses. 
To achieve this smoothing, the difference between the market value of 
the underlying portfolio and the book value of the underlying portfolio 
is amortized through periodic adjustments to the rate at which interest 
is credited to the book value of the underlying portfolio. The rate at 
which interest is credited is determined by means of a formula (the 
crediting rate formula) which takes into account the yield to maturity 
and the duration of the underlying portfolio as well as the ratio of 
the market value of the underlying portfolio to the book value.
    6. Stable value funds generally include: (1) a liquidity fund that 
may or may not be covered by a wrap agreement; and (2) multiple 
portfolios of assets, each covered by a different wrap agreement. The 
wrap agreements include rules establishing the priority for obtaining 
cash for withdrawals from the assets included in the stable value fund. 
Generally, these rules require that withdrawals be first met from new 
cash and then from the liquidity fund. Once these sources are 
exhausted, withdrawals are funded by selling securities in wrapped 
portfolios. Thus, for example, in the event there are significant 
participant withdrawals during a bond-market downturn (an environment 
in which there could be a significant difference between the wrap 
contract book value and the market value of the wrapped assets) the 
stable value fund would first access liquid assets in the fund in an 
attempt to make book value payments. Once those are exhausted, wrapped 
assets would be sold in a pre-specified order to provide liquidity 
needed to make book value payments. If all of the assets covered by a 
particular wrap contract were sold, and if the proceeds were 
insufficient to meet the book value payment, the wrap provider would 
pay the difference between the sale proceeds and the book value under 
the wrap contract before securities in the next lower tier would be 
sold to fund withdrawals.
    7. Wrap agreements can generally be terminated by either party 
(i.e., the

[[Page 61939]]

trustee of the stable value fund or the wrap provider) at market value. 
However, most wrap agreements have immunization provisions whereby if 
the wrap agreement is terminated: (1) More conservative investment 
guidelines (i.e., more conservative than the guidelines in effect 
before the immunization) will apply to the underlying portfolio; and 
(2) the wrap provider will continue to provide book value coverage 
until a date that is generally determined by reference to the 
underlying portfolio. If wrap contracts were terminable by the wrap 
provider on short notice at a time when the market value of the wrapped 
assets was below the wrapped contract book value, and another wrap 
provider could not be found as a substitute, the unwrapped assets would 
be immediately revalued down to their fair market value. Immunization 
is a ``middle ground,'' and provides a means of winding down and 
terminating a contract that otherwise would be ``evergreen.'' 
Immunization effectively permits an open-ended contract to be converted 
to a contract with a deferred termination date. During the immunization 
period, the wrapped contract continues to be ``benefit responsive'' and 
investors continue to receive payments at book value.
    8. Fees for wrap agreements are generally based on a percentage of 
the book value of assets covered by a wrap agreement. The fee is 
frequently paid from the assets of the Plan or Plan asset fund. The 
amount of the fee will vary depending upon the risk taken and the 
market conditions when the wrap agreement is negotiated. Since book 
value payments generally could occur when investments are moved to 
another non-competing investment option, when retirees or other 
inactive participants withdraw money from a plan and when participants 
take in-service withdrawals, book value payments are neither 
predictable nor controllable by the wrap provider. Notwithstanding that 
wrap contracts are structured in a manner that is intended to mitigate 
the risk of higher than expected or untimely participant withdrawals, 
the risk remains greater than zero. Fees for wrap agreements would be 
significantly higher if the wrap provider guaranteed the actual 
performance of the assets wrapped in circumstances beyond those 
described above.
    9. In the current distressed economic climate, the number of 
financial institutions that are willing to enter into wrap agreements 
has declined. To the extent wrap coverage can be obtained, the fees for 
providing such coverage have significantly increased from the fees 
generally available during the past ten years.
Paragraphs 10-22. Applicants' Description of RPT
    10. RPT is a ``stable value'' fund with approximately $11.7 billion 
book value of assets as of December 31, 2008. Payments to participants 
(or beneficiaries) upon retirement, death, disability, employment 
termination, hardship or transfer to a non-competing investment 
alternative are generally based on book value, such that a participant 
in RPT will receive his invested principal and interest at a crediting 
rate, as described in further detail below, even if the actual market 
value of the underlying assets is less.
    11. Bank of America, N.A. (hereinafter, either BANA or the Trustee) 
is the trustee of RPT. BlackRock Advisers, a wholly-owned subsidiary of 
BlackRock, is an investment adviser to RPT. The assets of RPT are 
divided into several portfolios, which include an actively managed 
portfolio with approximately $2.8 billion book value of assets (the 
Actively Managed Account) and a buy and hold portfolio with 
approximately $1.6 billion book value of assets (the Global Buy and 
Hold Account).
    12. In connection with the operation of RPT, the Trustee has 
entered into stable value wrap agreements with banks and other 
financial institutions to provide benefit responsive facilities with 
respect to certain assets of RPT. BANA is one of several financial 
institutions that have entered into stable value wrap agreements with 
the Trustee under RPT. In this regard, prior to the Merrill/BAC Merger, 
BANA had entered into two separate wrap agreements with the Trustee 
under RPT. One agreement, dated May 1, 2004, provides a benefit 
responsive facility with respect to the Actively Managed Account (the 
BANA RPT Global Wrap Agreement). The other agreement, dated October 16, 
1996 (assigned by Barclays Bank PLC to BANA effective April 1, 1998, 
and amended effective as of December 31, 2008), provides a benefit 
responsive facility with respect to the Global Buy and Hold Account 
(the BANA RPT Buy and Hold Wrap Agreement).
    13. The BANA RPT Global Wrap Agreement is one of four wrap 
agreements covering assets in a global wrap account (the Global Wrap 
Account). The Global Wrap Account represents approximately 24% of the 
total book value of the assets of RPT. The assets in the Global Wrap 
Account are actively managed. Under this wrap agreement, which RPT and 
BANA entered into prior to the Merrill/BAC Merger, BANA provide benefit 
responsive coverage for approximately 27% of the book value of the 
assets credited to the Global Wrap Account. Banks and financial 
institutions unaffiliated with BANA have entered into wrap agreements 
with the Trustee providing coverage for approximately 73% of the book 
value of the assets in the Global Wrap Account. The assets in the 
Global Wrap Account covered by the BANA RPT Global Wrap Agreement are 
not segregated from the assets in the Global Wrap Account covered by 
the other wrap agreements. Each wrap agreement covers a specified 
percentage of the book value of the assets in the Global Wrap Account 
as a whole. In this regard, the BANA RPT Global Wrap Agreement provides 
a benefit responsive wrap with respect to approximately 5.5% of the 
total book value of the assets of RPT.
    14. Under the BANA RPT Buy and Hold Wrap Agreement, prior to 
December 31, 2008, BANA provided a benefit responsive facility with 
respect to a segregated ``buy and hold'' portfolio of assets of RPT, 
with no other wrap provider providing a benefit responsive facility 
with respect to this portfolio. Effective as of December 31, 2008, the 
Applicants amended the BANA RPT Buy and Hold Wrap Agreement in a manner 
that: (a) Combined the ``buy and hold'' portfolio covered by the BANA 
RPT Buy and Hold Wrap Agreement with a portfolio of assets of RPT 
covered by a ``buy and hold'' benefit responsive wrap agreement between 
the Trustee and another unaffiliated wrap provider (Global Buy and Hold 
Wrap Provider 2) to form the Global Buy and Hold Account; and (b) 
provides that BANA will provide coverage for 50% of the book value of 
the assets held in the Global Buy and Hold Account. Global Buy and Hold 
Wrap Provider 2's wrap agreement with the Trustee was amended similarly 
to provide that it will provide coverage for 50% of the book value of 
the assets held in the Global Buy and Hold Account. As is the case with 
the BANA RPT Global Wrap Agreement, the assets in the Global Buy and 
Hold Account covered by the BANA RPT Buy and Hold Wrap Agreement are 
not segregated from the assets in the Global Buy and Hold Account 
covered by the other wrap agreement. Each wrap agreement covers a 
specified percentage of the book value of the assets in the Global Buy 
and Hold Account as a whole. The Global Buy and Hold Account as a whole 
represents approximately 13.6% of the book value of the assets of RPT, 
and the BANA RPT Buy and Hold Wrap Agreement

[[Page 61940]]

provides a benefit responsive wrap with respect to approximately 6.8% 
of the total book value of the assets of RPT.\3\
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    \3\ The Applicants represent that the conversion of the BANA RPT 
Buy and Hold Wrap Agreement into a ``global'' arrangement will not 
affect the Crediting Rate (referenced above and described in further 
detail below) applicable to a participant's account in RPT. In this 
regard, the Applicants state that the conversion involved a purely 
internal adjustment, based upon an objective mathematical formula, 
among BANA and the other wrap provider to reflect the different 
market to book ratios of assets wrapped by BANA and Global Buy and 
Hold Wrap Provider 2 at the time of conversion into the Global Buy 
and Hold Account. The Applicants represent that this adjustment is 
relevant only if the wrap contracts must be accessed to make benefit 
responsive payments and will have no effect on the participants.
---------------------------------------------------------------------------

    15. The BANA RPT Global Wrap Agreement and the BANA RPT Buy and 
Hold Wrap Agreement (the RPT Stable Value Agreements) provide for 
``buffer'' assets that would be liquidated to fund withdrawals from RPT 
before the assets held under the Global Wrap Account or the Global Buy 
and Hold Account are used to fund withdrawals. Under the RPT Stable 
Value Agreements, liquidity requirements for withdrawals would be 
satisfied in the following order:

    (1) Netting withdrawals from deposits whenever possible;
    (2) Simple interest payments and maturing proceeds;
    (3) Type ``A'' assets which include money market and other 
short-term investments as well as any short-term benefit responsive 
floaters;
    (4) Type ``B'' buffer contracts, which will generally be 
accessed on a pro rata basis;
    (5) Level ``C'' contracts on a pro rata basis; and
    (6) Level ``D'' contracts.

The RPT Stable Value Agreements cover Level C assets which, subject to 
a limited temporary exception for certain Plan level withdrawals from 
RPT, will not be accessed until assets in a higher category have all 
been accessed.\4\ A minimum of 8% of RPT's assets must be held as Type 
A and Type B combined. As of June 10, 2009, Type A and Type B assets 
accounted for approximately 13% of the assets of RPT. These ``buffer'' 
assets significantly reduce the likelihood that payments will be 
triggered for any of the wrap providers that wrap assets in the Global 
Wrap Account or the Global Buy and Hold Account.
---------------------------------------------------------------------------

    \4\ The Applicants represent that, to address liquidity concerns 
under RPT, the wrap providers covering assets in RPT have agreed to 
permit the Trustee and BlackRock Advisers to sell a vertical slice 
of securities held in RPT, other than securities covered by the 
Special Purpose Wrap Agreement (discussed below), to fund certain 
Plan-level withdrawals. In this regard, BAC will provide direct 
capital contributions to fund the difference between the market 
value and the book value of the assets attributable to the 
withdrawing Plans in an amount of up to $175 million. BAC's 
commitment to provide liquidity will be in effect for a maximum 
period of two years.
---------------------------------------------------------------------------

    16. The BANA RPT Stable Value Agreements effectively function to 
protect Plans that invest in RPT if there are significant withdrawals 
during negative market conditions. RPT has been structured with the 
expectation that RPT liquidity requirements can be satisfied without 
resort to the assets covered by the wrap contracts. Since RPT was 
established in 1989, the Trustee has never been required to access the 
wrap contracts. Eligible investments made by RPT are generally 
conservative and the buffer assets reduce the likelihood that a payment 
would need to be made under a wrap contract.\5\ Each of the RPT Stable 
Value Agreements also has strict investment guidelines regarding the 
investments that can be held under those contracts. Only in the event 
that there are substantial withdrawals from RPT at a time when the 
assets of RPT are significantly underperforming would there be any risk 
that the assets covered by the wrap contracts would need to be 
liquidated to satisfy withdrawals and a payment from a wrap provider 
would be required. Moreover, in the current distressed economic 
environment, participants in employee benefit plans have generally 
moved assets into conservative investments, such as stable value funds. 
RPT had a net inflow (i.e., contributions in excess of withdrawals) of 
approximately $300 million during the fourth quarter of 2008.
---------------------------------------------------------------------------

    \5\ The Department has not considered the issue, and is 
expressing no opinion herein, regarding whether RPT assets have been 
invested on a conservative basis or in a manner consistent with RPT 
guidelines.
---------------------------------------------------------------------------

    17. The crediting rate under a wrap agreement is the rate of 
interest that is used for purposes of determining the accrued interest 
to be added to the book value of the assets covered by the agreement. 
Under either RPT Stable Value Agreement, such crediting rate (the 
Crediting Rate) was set at the inception of the wrap agreement by 
agreement between BANA and the Trustee and has been, and will continue 
to be, reset periodically based on an objective formula. The Crediting 
Rate formula is designed to amortize the difference between the market 
value and the book value of assets covered by the wrap agreement over 
the approximate duration of the covered assets. The Crediting Rate 
formula used in the BANA RPT Global Wrap Agreement and the BANA RPT Buy 
and Hold Wrap Agreement, effective as of March 1, 2009, is:

Crediting Rate = [(PMV/PBV)1/(F*DUR) * (1 + AYTM)] - 1

Where:
PMV is the market value of the covered assets;
PBV is the book value of the covered assets;
ATYM is the dollar duration weighted annualized yield to maturity of 
the covered assets;
DUR is the modified duration (Macaulay duration of the asset or 
assets * 1/1 + dollar duration weighted annualized yield to maturity 
of the covered assets); and
F is the factor, if any, agreed upon by the Trustee or its designee, 
BANA and the other wrap providers covering assets in the Global Wrap 
Account or the Global Buy and Hold Account, and approved by the 
Independent Fiduciary for purposes of modifying the duration 
component of the Crediting Rate.\6\
---------------------------------------------------------------------------

    \6\ According to the Applicants, prior to March 2009, a slightly 
different Crediting Rate (to the one above) was set forth in the RPT 
Stable Value Agreements and the Separately Managed Account Wrap 
Agreements (described below), and a simplified version of that 
formula was used to calculate the Crediting Rate. The Applicants 
note further that, in at least one instance, the Crediting Rate was 
increased in the middle of a month. The Applicants do not believe 
these modifications, which are described in further detail below, 
adversely affected Plan participants and beneficiaries.

    18. In the current economic environment, it has become standard 
stable value industry practice to vary the duration component of the 
Crediting Rate formula to more quickly amortize the difference between 
the book value and the market value of assets covered by a wrap 
agreement. BlackRock Advisors and the Trustee believe that having 
flexibility to vary the duration component of the Crediting Rate 
formula applicable to the BANA RPT Stable Value Agreements is in the 
best interests of participants and beneficiaries because it will 
greatly enhance BlackRock Advisors' ability to react to low market to 
book ratios, the risk that securities will be downgraded, low Crediting 
Rates and volatile cash flows.\7\
---------------------------------------------------------------------------

    \7\ The Department notes that the Trustee's ability to shorten 
the duration component of the Crediting Rate formula may also 
benefit BANA by reducing the likelihood that BANA will have to make 
a payment to RPT during the immunization period (as described 
below).
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    19. The assets in RPT are valued by BlackRock on a daily basis 
using a BlackRock-approved process that applies to all client 
securities held by BlackRock. Valuations are performed without regard 
to whether the security is held in RPT or another account or commingled 
vehicle advised by BlackRock. When valuing securities in RPT, in all 
cases, BlackRock looks first to external third-party pricing sources,

[[Page 61941]]

including index providers, broker-dealers and independent pricing 
services. BlackRock has a hierarchy for prioritizing third-party 
pricing sources, based on availability and reliability of the price 
obtained. The pricing source may vary by asset class or type, but not 
for a particular security. Over time, the hierarchy used for a 
particular asset class may change due to a decrease in accuracy or 
consistency or a drop in coverage for a particular security. Currently, 
BlackRock's third-party pricing hierarchy generally works in the 
following order: (i) Index providers; (ii) broker-dealers (structured 
products); \8\ and (iii) third-party pricing services (currently FT 
Interactive and Reuters Pricing Services).
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    \8\ The Applicants state that, as a practical matter, in many 
instances broker-dealers will be the first pricing source for 
securities, including non-agency mortgage backed securities, in 
stable value products, because no index provider is available.
---------------------------------------------------------------------------

    20. BlackRock Solutions (BRS), a financial modeling group, would 
generate its own valuation only when it exhausts the third-party 
sources for a valuation. This could occur when there are no market 
quotations available for a security, or if a security were to break a 
control, which means that it is identified by the computer system 
because the price provided by a third-party source does not fall within 
certain statistical norms.\9\ Historically, BRS has been able to rely 
exclusively on third-party sources to price securities of the type held 
in RPT and, to date, has never generated its own price for such 
securities. However, as a result of the current market instability, BRS 
has enhanced and formalized its process for valuing securities when 
third-party sources are not available. With respect to assets covered 
by the RPT Stable Value Wrap Agreements, any valuation generated by BRS 
will be subject to the limitations described below.
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    \9\ The Applicants state that a security breaking a control does 
not necessarily mean that BRS will independently value the security. 
When a security breaks a control, BRS first contacts the external 
third-party pricing source that generated the value, provides that 
third-party source with additional information regarding the issue 
and asks the third-party source to review its price. The independent 
pricing source will verify or change its price based on the 
information provided. BRS will use the third party's valuation of a 
particular security, unless a determination has been made that the 
price is unreliable. If the price is deemed unreliable, it will be 
valued in accordance with this paragraph 20, subject to Independent 
Fiduciary oversight, as described below.
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    21. BANA and the Trustee each have the right to terminate the BANA 
RPT Global Wrap Agreement through an ``immunization'' process set forth 
in the BANA RPT Global Wrap Agreement.\10\ If an immunization period 
occurs, the wrapped assets will be managed in accordance with 
investment guidelines that are more conservative than the investment 
guidelines applicable under the wrap contract before the immunization 
period, with the intent of closing any gap between the market value of 
the wrapped assets and the wrap contract book value. The BANA RPT 
Global Wrap Agreement has what is referred to as a ``pull to par'' 
provision, so that the agreement will not terminate (absent the 
application of another termination provision, such as an event of 
default) until the gap between the market value of the wrapped assets 
and the wrap contract book value is closed, however long that takes. 
This ``pull to par'' provision has become a market standard provision 
and was included in the BANA RPT Global Wrap agreement prior to 
December 31, 2008. During the immunization period, if all wrapped 
assets were liquidated to fund book value payments, and market value 
had not converged with contract book value, BANA would be obligated to 
pay the remainder of the book value of the contract.
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    \10\ The Applicants state that, because the BANA RPT Buy and 
Hold Wrap Agreement covers a ``buy and hold'' portfolio, instead of 
an actively managed portfolio as covered by the BANA RPT Global Wrap 
Agreement, immunization is not a feature of the BANA RPT Buy and 
Hold Wrap Agreement. In this regard, the Trustee may elect to 
terminate the BANA RPT Buy and Hold Wrap Agreement by giving BANA 
seven business day's notice of such election. Absent a default by 
the Trustee, if BANA wants to terminate the BANA RPT Buy and Hold 
Wrap Agreement, BANA would not agree to future additions to, or 
substitution of assets in, the ``buy and hold'' portfolio covered by 
the agreement. In that event, the BANA RPT Buy and Hold Wrap 
Agreement generally would terminate on the maturity date of the 
latest maturing asset covered by the agreement.
---------------------------------------------------------------------------

    22. According to the Applicants, immunization of a wrap contract is 
more protective of Plan participants and beneficiaries than immediate 
termination, if a substitute wrap provider is not available. In this 
regard, the Applicants state that if a substitute wrap provider is not 
available, immediate termination of the BANA RPT Global Wrap Agreement 
or any other wrap contract covering assets in the Global Wrap Account 
at a time when the book value exceeded the market value would likely 
result in RPT ``breaking the buck'' (i.e., the value of participants' 
accounts would reflect the market value, rather than the book value, of 
assets that are no longer covered by the BANA RPT Global Wrap 
Agreement). If all or a portion of the Global Wrap Account is 
immunized, the returns would be reduced over time, but participants 
would still receive the book value of their account. In any event, 
because immunization could result in participants or Plan sponsors 
changing investment alternatives and loss of assets under management, 
BlackRock Advisors would work to find a substitute wrap provider as 
quickly as reasonably possible.
Paragraphs 23-29. Applicants' Representations and Request for Relief 
Regarding the Execution and Operation of the RPT Stable Value Wrap 
Agreements
    23. The Applicants seek exemptive relief for: The operation of the 
RPT Stable Value Wrap Agreements, pursuant to the terms of; and for 
transactions under the RPT Stable Value Wrap Agreements. The Applicants 
describe the operation of the RPT Stable Value Agreements as including, 
among other things, the following transactions (the RPT Wrap-Related 
Transactions): (1) The determination, calculation of, and adjustments 
to, the Crediting Rate and any changes to the Crediting Rate formula; 
(2) valuations of securities covered by the RPT Stable Value 
Agreements; (3) payment of wrap fees and any changes to wrap fees; (4) 
the purchase and sale of any security covered by the RPT Stable Value 
Agreements; (5) BANA's or the Trustee's exercise of its right to 
immunize or terminate the RPT Stable Value Agreements; and (6) 
amendments to the RPT Stable Value Agreements.
    24. According to the Applicants, the provision of wrap coverage by 
BANA to RPT could be considered an extension of credit under section 
406(a) of ERISA. The Applicants state also that, because BANA and 
Merrill are under common control by BAC, and Merrill has an approximate 
34% equity ownership interest in BlackRock, the maintenance of and 
transactions under the BANA RPT Stable Value Agreements could give rise 
to self-dealing concerns under section 406(b) of ERISA. In particular, 
BlackRock Advisor's role as investment adviser raises a concern that it 
could make investment decisions that are designed to benefit BANA, to 
the detriment of Plan participants and beneficiaries.
    25. The Applicants request that the exemptive relief sought herein 
be retroactive to January 1, 2009 (the date of the Merrill/BAC Merger). 
The Applicants state that retroactive relief is appropriate because 
terminating the BANA RPT Global Wrap Agreement prior to the Merger 
could have caused significant disruption to Plans and participants and 
beneficiaries investing in RPT. In this regard, if a substitute wrap 
provider was not available to replace BANA, immediate termination of 
the BANA RPT Global Wrap

[[Page 61942]]

Agreement or any other wrap agreement covering assets in the Global 
Wrap Account could have resulted in RPT ``breaking the buck'' (i.e., 
the value of the participants' accounts would have reflected the market 
value (rather than the higher book value) of assets no longer covered 
by the BANA RPT Global Wrap Agreement).
    26. The Applicants propose a number of conditions with respect to 
covered transactions involving the RPT Stable Value Agreements. In this 
regard, effective June 1, 2009, BlackRock Advisors may only change the 
formula for calculating the Crediting Rate after obtaining prior 
approval of BANA, the other financial institutions that have entered 
into wrap agreements covering the same assets in the Global Wrap 
Account or the Global Buy and Hold Account, as the case may be, and the 
Independent Fiduciary. BlackRock Advisors shall provide the Independent 
Fiduciary with any information it may reasonably request in determining 
whether to approve any proposed change in the Crediting Rate formula. 
Additionally, the Crediting Rate with respect to a RPT Stable Value 
Wrap Agreement may not be reset more frequently than on a monthly 
basis, unless: (1) Prior to such resetting, the crediting rate with 
respect to a non-BANA wrap agreement covering assets in the same Global 
Account as such RPT Stable Value Wrap Agreement is reset more 
frequently than on a monthly basis; and (2) the Crediting Rate is reset 
at the same time, and in the same manner, as such other crediting rate. 
Each financial institution entering into a wrap agreement covering 
assets included in a Global Account will obtain information from 
BlackRock Advisors on a monthly basis regarding the investments that 
are included in those accounts sufficient to enable the financial 
institution to independently verify that the Crediting Rate was 
calculated properly. In addition, the dollar amount of Global Wrap 
Account assets covered by the BANA RPT Global Wrap Agreement shall not 
exceed 50% of the total assets held in such Account, and the terms 
associated with the BANA RPT Global Wrap Agreement at the time such 
Agreement was entered into, amended, modified or renewed shall be no 
less favorable to RPT than the terms associated with comparable 
agreements with unrelated parties. Similarly, the dollar amount of 
Global Buy and Hold Account assets covered by the BANA RPT Buy and Hold 
Wrap Agreement shall not exceed 60% of the total assets held in such 
Account, and the terms associated with the BANA RPT Buy and Hold Wrap 
Agreement at the time such Agreement was entered into, amended, 
modified or renewed shall be no less favorable to RPT than the terms 
associated with comparable agreements with unrelated parties. Further, 
any RPT Wrap-Related Transaction that involves: (1) The exercise by 
BANA, the Trustee, or BlackRock Advisors of their rights under the RPT 
Stable Value Agreements; or (2) the performance by BANA, the Trustee, 
or BlackRock of their obligations under the RPT Stable Value 
Agreements, shall be subject to prior review and approval by the 
Independent Fiduciary if such exercise or performance affects the 
Crediting Rate or would otherwise have an adverse impact on the book 
value of a participant's or beneficiary's investment in RPT. 
Additionally, the Independent Fiduciary must receive a copy of any 
amendment contemplated for the RPT Stable Value Agreements (other than 
amendments that are purely ministerial in nature), and must thereafter 
review and approve the amendment prior to its implementation.
    27. The Applicants represent that the fee BANA will receive under 
the BANA RPT Global Wrap Agreement or the BANA RPT Buy and Hold Wrap 
Agreement will be reasonable relative to market conditions and risks, 
as determined and approved annually by the Independent Fiduciary. 
Notwithstanding this, in no event shall the fee exceed the maximum 
percentage fee paid to any other financial institution that has entered 
into a wrap agreement covering the same assets in the Global Wrap 
Account or the Global Buy and Hold Account, as the case may be. 
Additionally, the Trustee will not trigger immunization with respect to 
the BANA RPT Global Wrap Agreement unless: (i) The Trustee triggers 
immunization with respect to another wrap agreement (i.e., not provided 
by BANA) covering the same assets in the Global Wrap Account, 
immediately prior to, or at the same time as, immunization is triggered 
with respect to the BANA RPT Global Wrap Agreement; (ii) another 
financial institution that has entered into a wrap agreement with 
respect to assets in the Global Wrap Account triggers immunization 
immediately prior to, or at the same time as, immunization is triggered 
with respect to the BANA RPT Global Wrap Agreement; or (iii) the 
Trustee determines that BANA is no longer financially responsible and 
the Independent Fiduciary determines that the immunization is in the 
interests of investing Plans.
    28. The Applicants represent that assets held in RPT will be valued 
at their current fair market value on a daily basis. Valuations will be 
based on the price that may be obtained in a current arm's-length sale 
to a third party. In this regard, BlackRock will first obtain prices 
for securities from independent third-party sources, including index 
providers, broker-dealers and independent pricing services. To do this, 
BlackRock will maintain a hierarchy that prioritizes pricing sources by 
asset class or type and will value securities based on the price 
generated by the highest priority source. If no third-party sources are 
available to value a security (or the price generated by the third-
party falls outside specified statistical norms, and, after review, 
BlackRock determines that such price is not reliable), BlackRock will 
value the security using an analytic methodology. The Independent 
Fiduciary will thereafter review that methodology and valuation, and 
obtain its own valuation if it deems appropriate. Each financial 
institution that has entered into a wrap agreement covering assets in 
the Global Wrap Account and the Global Buy and Hold Account, including 
BANA, has the right to object to the valuation of a particular 
security, regardless of the source of the valuation. If such an 
objection is made, wrap providers that are not affiliated with BANA may 
thereafter determine a new valuation for the security, and BANA will be 
bound by this new valuation notwithstanding that BANA did not 
participate in the determination of such valuation, provided that BANA 
is provided with reasonably satisfactory documentation supporting the 
valuation.
    29. Prior to a Plan sponsor's decision to include RPT as an 
investment option for participants in the Plans it sponsors, the 
Trustee will provide the Plan sponsor with the following: The RPT 
Declaration of Trust (as amended and restated as of April 23, 2009, and 
as may be further amended from time to time); a purchase agreement to 
be entered into by the Plan fiduciary and the Trustee; upon request, a 
copy of the Annual Report for RPT and a fact sheet describing RPT's 
investment objective and strategy and a performance analysis; and a 
copy of the proposed exemption or the final exemption, if granted. 
Additionally, on an ongoing basis, Plan fiduciaries will receive the 
Annual Report for RPT and the Plan's Investment Summary and Accounting. 
Plan participants will also receive information describing the 
investment objectives and performance of RPT; and a statement, 
delivered at least quarterly, that sets forth the value of the 
participant's account contributions,

[[Page 61943]]

withdrawals, distributions, loans and change in value since the prior 
statement.
Paragraphs 30-40. Applicants' Representations and Request for Relief 
Regarding the Execution and Operation of the RPT Special Purpose Wrap 
Agreement
    30. The Applicants represent that, in the current market 
environment, there is a significantly increased risk that the credit 
rating of securities of the type included in RPT will be downgraded, 
including downgrades to below Baa3, BBB- or BBB- by Moody's Investors 
Services, Inc., Standard & Poor's Rating Group, or Fitch Ratings, 
respectively (Below Investment Grade Securities). However, several wrap 
agreements in RPT do not ``cover'' Below Investment Grade 
Securities.\11\ If a security held by RPT is no longer covered by a 
wrap agreement, participant accounts (with respect to Plans that invest 
in RPT) will reflect the lower market value, rather than the book 
value, with respect to the portion of their account attributable to the 
unwrapped security. This could cause RPT to effectively ``break the 
buck.''
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    \11\ In other words, these wrap agreements either do not permit 
a cure period (i.e., a period of time during which a downgraded 
security may be sold), or have a cure period that is of a limited 
duration.
---------------------------------------------------------------------------

    31. To reduce the risk that Below Investment Grade Securities would 
cause RPT to ``break the buck,'' MLTC and BANA entered into the RPT 
Special Purpose Wrap Agreement on April 23, 2009. The RPT Special 
Purpose Wrap Agreement is designed to cover securities which cease to 
be covered by a RPT wrap solely as a result of a downgrade in the 
security's credit rating to below ``investment grade.'' Under the RPT 
Special Purpose Wrap Agreement, BlackRock Advisors will automatically 
transfer each Below Investment Grade Security to a new portfolio (the 
Type D1 Account), and that security will be covered by the RPT Special 
Purpose Wrap Agreement (hereafter, a Below Grade Investment Security 
held in the Type D1 Account and covered by the RPT Special Purpose Wrap 
Agreement shall be referred to as a Downgraded Security). As described 
in paragraph 34 below, the RPT Special Purpose Wrap Agreement is 
designed to rapidly amortize the difference between the amortized cost 
of a Downgraded Security and the market value of the Downgraded 
Security.\12\
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    \12\ The Applicants state that securities that are ``impaired'' 
will not be transferred to the RPT Special Purpose Wrap Agreement. 
The Applicants generally describe an ``impaired'' security as: (a) A 
security with respect to which the issuer or guarantor has failed to 
make one or more payments of principal or interest; (b) a security 
with respect to which the principal or interest has become due and 
payable before it otherwise would have been due or payable; (c) a 
security where the rate of interest thereon has been reset; or (d) a 
security with respect to which the issuer becomes insolvent or 
institutes or has instituted against it a proceeding seeking a 
judgment of insolvency or bankruptcy. The Applicant states that an 
``impaired security'' would remain in RPT and the Trustee would 
decide whether to hold or sell such security.
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    32. The proposed exemption, if granted, would permit certain 
transactions in connection with the operation of the RPT Special 
Purpose Wrap Agreement. These transactions (the Special Purpose Wrap-
Related Transactions) include: (1) The transfer of Below Investment 
Grade Securities to the Type D1 Account; (2) the sale or transfer of 
Downgraded Securities out of the Type D1 Account; (3) the purchase and 
sale of certain other securities permitted to be held in the Type D1 
Account (the Permitted Securities, as described below); (4) 
transactions relating to maintenance of a minimum ratio of Permitted 
Securities and Downgraded Securities (the Minimum Ratio, as described 
below); (5) the determination, calculation of and adjustments to the 
Type D1 Account Crediting Rate (described below) and any changes to the 
Type D1 Account Crediting Rate formula; (6) valuations of securities 
covered by the RPT Special Purpose Wrap Agreement; (7) payment of and 
any changes to wrap fees; (8) BANA's or the Trustee's exercise of its 
right to immunize or terminate the RPT Special Purpose Wrap Agreement; 
and (9) the entering into and amendment of the RPT Special Purpose Wrap 
Agreement.
    33. Certain limits apply to the amount of Below Investment Grade 
Securities that may be transferred to the Type D1 Account. 
Specifically, the Type D1 Account may consist of up to a maximum of 
$200 million in: (1) Book value of Downgraded Securities that have not 
been sold; and/or (2) aggregate unamortized realized losses with 
respect to Downgraded Securities. BlackRock Advisors expects to sell 
Downgraded Securities as market conditions permit. Any remaining 
unamortized losses associated with the sale of the Downgraded 
Securities will continue to be amortized under the RPT Special Purpose 
Wrap Agreement.
    34. In addition to Downgraded Securities, the Type D1 Account will 
be funded with Permitted Securities. Permitted Securities are U.S. 
Treasury debentures, Government National Mortgage Association (GNMA) 
securities and securities guaranteed by the Federal Deposit Insurance 
Corporation (FDIC). The Applicants state that these purchases have been 
made, and the Type D1 Account currently holds approximately $500 
million in Permitted Securities. The maximum modified duration of a 
Permitted Security will be 3.5 years at the time of purchase. The RPT 
Special Purpose Wrap Agreement requires a minimum ratio of 2.5 to 1.0 
of market value of Permitted Securities to the total unamortized 
unrealized and realized losses with respect to the Downgraded 
Securities (the Minimum Ratio).\13\ This Minimum Ratio is designed to 
ensure that the Type D1 Account receives sizeable investment gains, 
which, in turn, would enable a more rapid amortization of the losses 
included in the RPT Special Purpose Wrap Agreement. The Minimum Ratio 
will be monitored on a daily basis, and if it drops below 2.5 to 1.0, 
BlackRock Advisors will correct the ratio within 10 business days 
either by moving additional Permitted Securities into the Type D1 
Account or by selling Downgraded Securities and using the proceeds of 
those sales to reinvest in Permitted Securities. Notwithstanding the 
above, if the ratio is not corrected within 10 business days of a 
breach of the Minimum Ratio, BANA reserves the right to terminate the 
RPT Special Purpose Wrap Agreement immediately without payment 
obligation.
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    \13\ The Applicants state that the RPT Special Purpose Wrap 
Agreement permits the Trustee to reduce the amount of Permitted 
Securities (provided the Minimum Ratio is maintained) if the ratio 
of the market value of Permitted Securities to the total unamortized 
unrealized and realized losses with respect to Downgraded Securities 
is greater than 2.5 to 1.0.
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    35. The total book value of the assets included in the D1 Account 
and covered by the RPT Special Purpose Wrap will not exceed $700 
million without the prior written consent of the Trustee, BANA, and the 
Independent Fiduciary. Additionally, the Type D1 Account Crediting Rate 
will be 0.00% as of the next following reset date at any time when the 
book value under the wrap agreement includes any unamortized losses 
(realized or unrealized) on Downgraded Securities. The reason for using 
a 0.00% Crediting Rate is to amortize losses as quickly as possible and 
to maintain as much capacity as possible to move additional Below 
Investment Grade Securities into the Type D1 Account to be covered by 
the RPT Special Purpose Wrap Agreement. If the book value under the RPT 
Special Purpose Wrap Agreement does not include any unamortized losses 
on Downgraded Securities, the Type D1 Account Crediting Rate will be

[[Page 61944]]

determined on a monthly basis using the following formula:
Crediting Rate = [(PMV/PBV)I/(F*DUR) * (1 + AYTM)] - 1

Where:
AYTM = dollar duration weighted annualized yield to maturity.
PMV = fair market value of assets in the Type D1 Account (as reduced 
by accrued but unpaid fees).
PBV = book value of the Type D1 Account.
DUR = modified duration (Macaulay duration of the asset or assets * 
1/(1 + the dollar weighted annualized yield to maturity of the 
asset)).
F = factor, if any, agreed upon by BlackRock Advisors and BANA and 
approved by the Independent Fiduciary.

    36. The Applicants state that the Type D1 Account Crediting Rate 
formula would likely generate a higher return for Participants on the 
assets applied to purchase the Permitted Securities than the 
approximately 40 basis point return currently received if these assets 
continued to be held in Type A cash-equivalent investments. Effective 
June 1, 2009, BlackRock Advisors will not change the Type D1 Account 
Crediting Rate formula unless BANA and the Independent Fiduciary agree 
to the adjustment before it is made. BlackRock Advisors must first 
provide the Independent Fiduciary with any information it may 
reasonably request in determining whether to approve a proposed change 
in the formula. Additionally, the Type D1 Account Crediting Rate itself 
will not be reset more frequently than monthly.
    37. Downgraded Securities and Permitted Securities will be valued 
using the same process applicable to assets in the Global Wrap Account 
and the Global Buy and Hold Account, as described in paragraph 19 
above, except that the Independent Fiduciary will review valuations of 
Downgraded Securities and Permitted Securities where BlackRock is 
unable to obtain a reliable valuation from third party sources and, if 
it deems appropriate, the Independent Fiduciary will obtain an 
independent valuation, which will be binding upon BANA. Further, if 
BANA objects to a valuation provided by BlackRock, the Independent 
Fiduciary will review the valuation and, if it deems appropriate, the 
Independent Fiduciary will thereafter obtain an independent valuation. 
In that situation, BANA will be bound by the valuation determined by 
the Independent Fiduciary.
    38. The fee paid by RPT to BANA under the RPT Special Purpose Wrap 
Agreement was initially set at 15 basis points per annum, payable 
quarterly.\14\ The fee must be reviewed annually for reasonableness 
relative to market conditions and risks, and approved by the 
Independent Fiduciary in the manner described in paragraph 47 below. 
Notwithstanding this, in no event shall the fee exceed 15 basis points. 
The fee will be based on the total book value of assets included in the 
Type D1 Account, including both the Downgraded Securities and the 
Permitted Securities.
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    \14\ As described in further detail in paragraph 51 below, the 
Independent Fiduciary has submitted a written report (the Report) to 
the Department regarding the Special Purpose Wrap Agreement 
arrangement. In the Report, the Independent Fiduciary opined that a 
fee level of 15 basis points is reasonable and within the range of 
fees paid by RPT to other, unrelated wrap providers.
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    39. The RPT Special Purpose Wrap Agreement will not have a 
specified term, but will be an ``evergreen'' contract. However, unless 
otherwise agreed by BANA, the Trustee, and the Independent Fiduciary, 
no Below Investment Grade Securities will be added to the RPT Special 
Purpose Wrap Agreement after April 23, 2011. The Trustee has the right 
to immunize the portfolio of securities included in the Type D1 Account 
only if BANA elects to terminate the RPT Special Purpose Wrap 
Agreement, or if BANA defaults under the RPT Special Purpose Wrap 
Agreement. If an immunization election becomes effective (the RPT 
Special Purpose Immunization Date), the RPT Special Purpose Wrap 
Agreement would terminate on the later of: (1) The date that is the 
number of years after the RPT Special Purpose Immunization Date which 
does not extend beyond the modified duration (as defined in the RPT 
Special Purpose Wrap Agreement) of the underlying assets on the RPT 
Special Purpose Immunization Date; or (2) the first date on which the 
market value of the underlying assets equals or exceeds the book value 
under the wrap agreement. From the RPT Special Purpose Immunization 
Date to the termination date, the underlying assets would be managed by 
BlackRock Advisors in accordance with immunization guidelines set forth 
in the RPT Special Purpose Wrap Agreement. This Agreement has a ``pull 
to par'' provision, as described above, and may be terminated by the 
Trustee at market value at any time, but the Trustee would only do so 
if alternative wrap coverage was available. According to the 
Applicants, the Trustee generally would not take this action unless the 
market value of the assets in the Type D1 Account exceeded the book 
value of those assets and another wrap provider agreed to provide a 
benefit responsive facility with respect to those assets.
    40. The Trustee has engaged the Independent Fiduciary to monitor 
the performance of BlackRock Advisors and the Trustee with respect to 
the Type D1 Account and the RPT Special Purpose Wrap Agreement. Under 
the terms of this engagement, and as described in part above, the 
Independent Fiduciary must, among other things: (1) Determine whether 
the RPT Special Purpose Wrap Agreement and the Type D1 Account 
arrangement are prudent and in the best interest of participants and 
beneficiaries of the Plans that have invested in RPT; (2) make an 
initial and, thereafter, annual determination regarding whether the fee 
paid by RPT to BANA under the Special Purpose Wrap Agreement is 
reasonable relative to the specific attributes of the RPT Special 
Purpose Wrap Agreement; (3) make an annual determination regarding 
whether the continued maintenance of the RPT Special Purpose Wrap 
Agreement is appropriate and in the interest of Plans; and (4) make a 
monthly determination regarding whether the appropriate Type D1 Account 
Crediting Rate formula is being used and a monthly determination 
regarding whether such appropriate formula is being applied in proper 
manner. Further, the Independent Fiduciary must receive a copy of any 
amendment contemplated for the RPT Special Purpose Wrap Agreement 
(other than amendments that are purely ministerial in nature), and must 
thereafter review and approve the amendment prior to its 
implementation. Finally, the Independent Fiduciary must review and give 
prior approval for any RPT Special Purpose Wrap-Related Transaction 
that involves: (1) The exercise by BANA, the Trustee, or BlackRock 
Advisors of their rights under the RPT Special Purpose Wrap Agreement; 
or (2) the performance by BANA, the Trustee, or BlackRock of their 
obligations under the RPT Special Purpose Wrap Agreement, if such 
exercise or performance affects the Type D1 Crediting Rate or otherwise 
would have an adverse impact on the book value of a participant's or 
beneficiary's investment in RPT.
Paragraphs 41-49. Applicants' Request for Relief Involving the 
Separately Managed Account Wrap Agreements
    41. The Applicants also seek exemptive relief for the provision and 
operation of certain wrap agreements applicable to two separately 
managed accounts. In this regard, BlackRock Advisors manages two 
separately managed accounts, one on behalf of the Hertz Plan (the Hertz 
Separately

[[Page 61945]]

Managed Account) and the other on behalf of the Wal-Mart Plan (the Wal-
Mart Separately Managed Account). These two separately managed accounts 
(the Separately Managed Accounts) operate in a manner that is 
substantially similar to RPT while being set up for individual employee 
benefit plans, rather than contained as part of a collective trust. 
MLTC is the directed trustee for the Wal-Mart Separately Managed 
Account. MLTC entered into an agreement with BANA, dated August 19, 
2003, and amended effective as of December 31, 2008, pursuant to which 
BANA provides a book value benefit responsive facility with respect to 
a portion of the assets held in the Wal-Mart Separately Managed Account 
(BANA Wal-Mart Separately Managed Wrap Agreement). The Bank of New York 
Mellon, as successor by operation of law to Mellon Bank N.A. (Mellon) 
is the trustee for the Hertz Separately Managed Account, and Mellon 
entered into an agreement with BANA and BlackRock Advisors, as 
investment manager, dated July 27, 2007, and amended effective as of 
December 31, 2008, pursuant to which BANA provides a book value benefit 
responsive facility with respect to a portion of the assets held in the 
Hertz Separately Managed Account (the BANA Hertz Separately Managed 
Wrap Agreement).
    42. The Applicants request that the exemptive relief sought with 
respect to the BANA Wal-Mart Separately Managed Wrap Agreement and the 
BANA Hertz Separately Managed Wrap Agreement (collectively, the 
Separately Managed Account Wrap Agreements) be retroactive to January 
1, 2009 (i.e., the date of the Merrill/BAC Merger). The Applicants 
state that retroactive relief is appropriate since terminating the 
Separately Managed Account Wrap Agreements prior to the Merrill/BAC 
Merger would have caused significant disruption to the Plans and 
participants and beneficiaries invested in the Separately Managed 
Accounts. In this regard, the Applicants represent that in the current 
distressed economic environment it is unlikely that a substitute wrap 
provider could have been found for BANA. If a substitute wrap provider 
was not available, immediate termination of the Separately Managed 
Account Wrap Agreements could have resulted in the Separately Managed 
Accounts ``breaking the buck'' (i.e., the value of the participants' 
accounts would have reflected the market value (rather than the higher 
book value) of assets no longer covered by the Separately Managed 
Account Wrap Agreements.
    43. According to the Applicants, the provision of wrap coverage by 
BANA to the Separately Managed Accounts could be considered an 
extension of credit under section 406(a) of ERISA. The Applicants state 
also that, because BANA and Merrill are under common control by BAC, 
and Merrill has an approximate 34% equity ownership interest in 
BlackRock, the operation of the Separately Managed Account Agreements, 
and certain transactions engaged in under such Agreements, could give 
rise to self-dealing concerns under section 406(b) of ERISA. In 
particular, BlackRock Advisor's role as investment adviser raises a 
concern that it could make investment decisions that are designed to 
benefit BANA, to the detriment of participants in the Hertz Plan and/or 
the Wal-Mart Plan.
    44. The Applicants describe the provision and maintenance of the 
Separately Managed Account Wrap Agreements as including the following 
transactions (the Separately Managed Wrap-Related Transactions): (1) 
The determination, calculation of and adjustments to the Crediting Rate 
and any changes to the Crediting Rate formula; (2) valuations of 
securities covered by the Separately Managed Account Wrap Agreements; 
(3) payment of wrap fees and any changes to wrap fees; (4) the purchase 
and sale of any security covered by the Separately Managed Account Wrap 
Agreements; (5) BANA's or the Trustee's exercise of its right to 
terminate the Separately Managed Wrap Agreements; and (6) amendments to 
the Separately Managed Wrap Agreements.
    45. The Separately Managed Account Wrap Agreements are ``buy and 
hold'' arrangements and do not cover actively-managed portfolios. The 
BANA Wal-Mart Separately Managed Wrap Agreement provides two levels of 
``buffers'' which would be accessed before any assets covered by BANA 
would be used to provide benefit responsive payments. More than 64.3% 
of the assets in the Wal-Mart Separately Managed Account consist of 
investments held in these buffers, referred to as Tier 1 and Tier 2. 
The assets covered by the BANA Wal-Mart Separately Managed Wrap 
Agreement are included in the last tier to be accessed (Tier 3) and, 
when accessed, are only accessed on a pro-rata basis with the assets 
covered by the seven other Tier 3 Wrap Providers.\15\ The BANA Hertz 
Separately Managed Wrap Agreement has one buffer which is accessed 
before any assets covered by the BANA Hertz Separately Managed Wrap 
Agreement would be accessed to provide benefit responsive payments. 
Sixty-three and a third percent of the assets in the Hertz Separately 
Managed Account are held in this buffer. After the initial buffer is 
depleted for benefit responsive payments, assets are sold using the 
last-in-first-out principle. Because the assets covered by the BANA 
Hertz Separately Managed Wrap Agreement are the assets in the Hertz 
Separately Managed Account that became subject to a benefit responsive 
facility most recently prior to the date of the Application, these 
assets will be the first assets sold to satisfy benefit responsive 
payments after the buffer is depleted.
---------------------------------------------------------------------------

    \15\ The Applicants describe a Tier 3 Wrap Provider as a 
financial institution that has entered into a wrap agreement with 
respect to assets held in the Wal-Mart Separately Managed Account 
that will not be accessed for purposes of making benefit payments 
until two tiers of buffer assets are accessed.
---------------------------------------------------------------------------

    46. The Applicants propose several conditions with respect to 
covered transactions involving the Separately Managed Wrap Agreements. 
In this regard, under each Agreement, the Crediting Rate was set at the 
inception of the wrap agreement by BANA and the counterparty and has 
been, and will continue to be, reset periodically based on a formula 
designed to amortize the difference between the market value and the 
book value of the assets covered by the wrap agreement over the 
approximate duration of the covered assets. The Crediting Rate formula 
used in the BANA Hertz Separately Managed Wrap Agreement, effective 
March 1, 2009, is: Crediting Rate = [(PMV/PBV)I/(F*DUR)*(1 + 
AYTM)]-1.

The Crediting Rate formula in the Wal-Mart Separately Managed Wrap 
Agreement, effective March 1, 2009,\16\ is:
---------------------------------------------------------------------------

    \16\ See footnote 6.

Net Crediting Rate = [((PMV/PBV)I/(F*DUR) * (1 + AYTM))-1]-
---------------------------------------------------------------------------
WF

Where:
PMV = market value of the covered assets.
PBV = book value of the covered assets.
AYTM = dollar duration weighted annualized yield to maturity of the 
covered assets.
DUR = modified duration {Macaulay duration of the asset or assets * 
1/(1+ dollar weighted annualized yield to maturity of the asset or 
asset)).
F = factor, if any, agreed upon by BlackRock Advisors and BANA and 
approved by the Independent Fiduciary for purposes of modifying the 
duration component of the Crediting Rate.
WF = wrap fee rate.


[[Page 61946]]


Effective June 1, 2009, BlackRock Advisors may only change the formula 
for calculating the Crediting Rate after obtaining prior approval of 
BANA and the Independent Fiduciary.
    47. BANA will not receive a fee under the either the BANA Wal-Mart 
Separately Managed Wrap Agreement or the BANA Hertz Separately Managed 
Wrap Agreement in excess of the maximum percentage fee received by any 
other Tier 3 Wrap Provider in the Wal-Mart Separately Managed Account 
or the BANA Hertz Separately Managed Wrap Agreement, as the case may 
be. Additionally, assets covered by the BANA Hertz Separately Managed 
Wrap Agreement and the BANA Wal-Mart Separately Managed Wrap Agreement 
will be valued in a similar fashion as assets covered by the BANA RPT 
Stable Value Agreements, except that, if BANA objects to the valuation 
of any asset, the Independent Fiduciary will make a binding 
determination of the value of the asset.
    48. Pursuant to the investment management agreements relating to 
the Separately Managed Accounts, BlackRock Advisors provides the named 
fiduciaries of the Hertz Plan and the Wal-Mart Plan with information 
regarding investment performance and the assets held in the Separately 
Managed Accounts, including type of asset, crediting rate, duration and 
credit quality. In contrast with the BANA RPT Stable Value Agreements, 
the Separately Managed Account Wrap Agreements are not global 
arrangements. Each agreement provides coverage for 100% of the book 
value of the specified assets. Because the Separately Managed Account 
Wrap Agreements are not global arrangements, no wrap provider (other 
than BANA) is involved in these arrangements that, as an independent 
third party, could protect against potential conflicts of interests 
between BANA and BlackRock Advisors. For this reason, BlackRock 
Advisors and a named fiduciary of the Hertz Plan, and BlackRock 
Advisors and a named fiduciary of the WalMart Plan, have engaged the 
Independent Fiduciary to perform the following tasks (which are in 
addition to the duties described above): (1) Conduct a monthly review 
of the Crediting Rate; (2) analyze the purchase or sale of any 
security, including any change to the market to book ratio, duration or 
Crediting Rate; (3) review and approve any proposed amendment to the 
BANA Hertz Separately Managed Wrap Agreement or the BANA Wal-Mart 
Separately Managed Wrap Agreement; (4) review any exercise of contract 
provisions by any of BANA, BlackRock Advisors or, in the case of the 
BANA Wal-Mart Separately Managed Wrap Agreement, the Trustee, and 
analyze its potential impact on investors; (5) provide quarterly 
reports to BlackRock Advisors and to the named fiduciaries of the Wal-
Mart Plan and the Hertz Plan stating, among other things, whether 
BlackRock Advisors has complied with all requirements of its contract. 
The Independent Fiduciary will also inform the named fiduciaries of a 
Plan if it believes that BANA or BlackRock Advisors has taken any 
actions that are not in the best interests of the participants and 
beneficiaries in the Wal-Mart Plan or the Hertz Plan, as relevant. 
Consistent with this, the Independent Fiduciary will review and must 
give prior approval for any Separately Managed Account Wrap-Related 
Transaction that involves: (1) The exercise by BANA, the Trustee, or 
BlackRock Advisors of their rights under the Separately Managed Account 
Wrap Agreements; or (2) the performance by BANA, the Trustee, or 
BlackRock of their obligations under the Separately Managed Account 
Wrap Agreements, if such exercise or performance affects the Crediting 
Rate or otherwise would have an adverse impact on the book value of a 
participant's or beneficiary's investment in the Separately Managed 
Accounts.
    49. Each of the Separately Managed Account Wrap Agreements 
effectively may be terminated by terminating the appointment of 
BlackRock Advisors as investment manager. Under the Hertz Separately 
Managed Account, the named fiduciaries (or their authorized 
representatives) of the Hertz Plan may terminate BlackRock Advisors, as 
the investment manager, on 30 days' notice. Under the Wal-Mart 
Separately Managed Account, the named fiduciaries (or their authorized 
representatives) of the Wal-Mart Plan may terminate BlackRock Advisors, 
as the investment manager, on 90 days' notice. Because each of the 
Separately Managed Account Wrap Agreements covers a ``buy and hold'' 
portfolio, immunization is not a feature of either agreement. BlackRock 
Advisors may elect to terminate the Separately Managed Account Wrap 
Agreements by giving BANA seven business days' notice of such election. 
Absent a default by the counterparty, BANA may terminate the Separately 
Managed Account Wrap Agreements by failing to agree to future additions 
to, or substitution of assets in, the ``buy and hold'' portfolio 
covered by the agreement and then the agreement generally would 
terminate on the maturity date of the latest maturing asset covered by 
the agreement.
Paragraphs 50-51. The Independent Fiduciary
    50. The Independent Fiduciary is Fiduciary Counselors Inc., located 
in Washington, DC. The Independent Fiduciary is experienced and 
knowledgeable in the transactions and arrangements described herein. 
The Independent Fiduciary is independent of and unrelated to BANA, 
Merrill, BlackRock and their Affiliates. In this regard, the 
Independent Fiduciary represents that, during any year of its 
engagement, its annual gross revenue from BANA, Merrill, and BlackRock 
has not, and will not, exceed five percent (5%) of the Independent 
Fiduciary's annual gross revenue from all sources (for federal income 
tax purposes) for its prior tax year.
    51. In a written report dated April 2, 2009, submitted to the 
Department (the Report), the Independent Fiduciary made a number of 
representations regarding the RPT Special Purpose Wrap Agreement. In 
the Report, the Independent Fiduciary stated that, among other things: 
the RPT Special Purpose Wrap Agreement is an innovative solution to the 
``breaking the buck'' problem with a laudable objective that clearly is 
in the best interests of Plan participants; and it is likely that the 
15 basis point annual wrap fee associated with the RPT Special Purpose 
Wrap Agreement will soon be industry average, if not lower than 
average. Regarding the Type D1 Account Crediting Rate, the Independent 
Fiduciary stated that such crediting rate arrangement is reasonable 
given that BANA has a limited capacity to absorb Below Investment Grade 
Securities, and that additional capacity is not available from anyone 
else. In the Report, the Independent Fiduciary states further that the 
investment management flexibility (regarding the sale of Below 
Investment Grade Securities) allowed by the Special Purpose Wrap 
Agreement benefits Plan participants because it will enable sales to 
occur when market conditions warrant, without the imposition of 
constraints from the wrapper contract. Additionally, the Independent 
Fiduciary stated in the Report that other provisions in the Special 
Purpose Wrap Agreement are within the norms for wrap contracts between 
unrelated parties.
    52. In summary, the Applicants represent that the transactions 
described herein satisfy the statutory criteria set forth in section 
408(a) of the Act and section 4975(c)(2) of the Code because, among 
other things: in the current

[[Page 61947]]

distressed economic environment it is unlikely that a substitute wrap 
provider could be found for BANA; the interests of affected Plans have 
been, and will be, protected by the Independent Fiduciary; and the fee 
received by BANA pursuant to the arrangements described herein will be 
reasonable relative to market conditions and risks, as determined by 
the Independent Fiduciary.

Notice to Interested Persons

    Written notice will be provided to a representative of each Plan 
invested in RPT, and the named fiduciaries of the Hertz Plan and the 
Wal-Mart Plan. The notice shall contain a copy of the proposed 
exemption as published in the Federal Register and an explanation of 
the rights of interested parties to comment regarding the proposed 
exemption. Such notice will be provided by personal or express 
delivery, or electronically if correspondence between the relevant 
parties is typically carried out electronically, within 15 days of the 
issuance of the proposed exemption. Any written comments must be 
received by the Department from interested persons within 45 days of 
the publication of this proposed exemption in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Chris Motta of the Department, 
telephone (202) 693-8544. (This is not a toll-free number.)

    Citigroup Inc. and its affiliates (Citigroup), the Citigroup 
401(k) Plan, the Citibuilder 401(k) Plan for Puerto Rico (the 
Citibuilder Plan and collectively with the Citigroup 401(k) Plan, 
the Participant Directed Plans), the Citigroup Pension Plan (and 
collectively with the Participant Directed Plans, the Plans) (the 
Applicants), located in Greenwich, CT. [Application No. D-11591]

 Proposed Exemption

    The Department of Labor is considering granting an exemption under 
the authority of section 408(a) of the Employee Retirement Income 
Security Act of 1974, as amended (the Act) and section 4975(c)(2) of 
the Internal Revenue Code of 1986 (the U.S. Code) and in accordance 
with the procedures set forth in 29 CFR Part 2570, subpart B (55 FR 
32836, 32847, August 10, 1990).

Section I: Transactions

    If the proposed exemption is granted:
    (a) The restrictions of sections 406(a), 406(b)(1), 406(b)(2), and 
407(a) of the Act \17\ shall not apply, effective June 22, 2009 (the 
Record Date), to:
---------------------------------------------------------------------------

    \17\ For purposes of this exemption, references to provisions of 
Title I of the Act, unless otherwise specified, refer also to the 
corresponding provisions of the Code.

    (1) The acquisition of stock rights (the Rights) by certain 
plans, described below in Section I(a)(1)(A) through (C) of this 
exemption, in connection with holding shares of common stock of 
Citigroup Inc. (Citigroup Stock) on the Record Date established 
pursuant to an offering of such Rights (the Offering) in accordance 
with the Tax Benefits Preservation Plan (the Rights Plan) by 
Citigroup Inc. (Citigroup), a party in interest with respect to the 
following plans, and/or the acquisition of Citigroup Stock and the 
attached Rights by the plans in the future pursuant to the Offering:
    (A) The Citigroup 401(k) Plan (the Citigroup 401(k) Plan);
    (B) The Citibuilder 401(k) Plan for Puerto Rico (the Citibuilder 
Plan and collectively with the Citigroup 401(k) Plan, the 
Participant Directed Plans); and
    (C) The Citigroup Pension Plan (the Citigroup Pension Plan and 
collectively with the Participant Directed Plans, the Plans);
    (2) The holding of the Rights by the Plans until the date the 
Plans exercise or otherwise dispose of the Rights or the expiration 
of such Rights in accordance with the terms and conditions of the 
Rights Plan, whichever is earlier; and
    (3) The exercise or other disposition of the Rights by the 
Plans;

provided that the conditions in Section II of this proposed 
exemption, as set forth below, are satisfied.\18\
---------------------------------------------------------------------------

    \18\ The Department's determination to propose relief for these 
transactions should not be viewed as an endorsement of the Rights 
Plan, nor is it offering any views as to whether such transactions 
satisfy any other requirements of ERISA, the Code or other relevant 
statutory provisions. Rather, this proposed exemption is designed to 
place the Plans and their participants and beneficiaries in the same 
position as other holders of Citigroup Stock with respect to the 
acquisition of the Rights and to prevent the possible dilution of 
the Plans' investment in the Citigroup Stock.

    (b) The sanctions resulting from the application of section 4975 of 
the Internal Revenue Code of 1986 (the Code), by reason of section 
4975(c)(1)(A) through (E) shall not apply, effective June 22, 2009, to 
the acquisition of the Rights by the Plans, described above in Section 
I(a)(1)(A), and Section I(a)(1)(C) of this proposed exemption; \19\ 
provided that the conditions in Section II of this proposed exemption, 
as set forth below, are satisfied.
---------------------------------------------------------------------------

    \19\ The Applicants represent that, because the fiduciaries for 
the Citibuilder 401(k) Plan for Puerto Rico have not made an 
election under section 1022(i)(2) of the Act, whereby such plan 
would be treated as a trust created and organized in the United 
States for purposes of tax qualification under section 401(a) of the 
U.S. Code, jurisdiction under Title II of the Act does not apply. 
Accordingly, the Applicant is not seeking any relief for the 
prohibitions, as set forth in Title II of the Act, for the 
acquisition of the Rights by the Citibuilder Plan.
---------------------------------------------------------------------------

Section II: Conditions

    The relief provided in this proposed exemption is conditioned upon 
adherence to the material facts and representations described herein 
and as set forth in the application file and upon compliance with the 
conditions, as set forth in this proposed exemption.
    (a) The acquisition by each of the Plans of the Rights occurred or 
will occur in connection with the June 22, 2009 Offering made available 
by Citigroup on the same terms to all shareholders of the common stock 
of Citigroup (the Citigroup Stock), including the acquisition of the 
Rights at no cost to the Plans;
    (b) The acquisition of the Rights by the Participant Directed Plans 
on the Record Date resulted from an independent act of Citigroup as a 
corporate entity. The acquisition of the Rights by the Plans in the 
future will occur either at the direction of individual participants 
(in the case of the Participant Directed Plans), at the direction of an 
Independent Fiduciary (in the case of the Citigroup Pension Plan), or 
in connection with in-kind contributions to a Plan by Citigroup of 
Citigroup Stock and attached Rights (a Stock/Right Contribution), in 
each case incidental to, and as a direct consequence of, the purchase 
or other acquisition of Citigroup Stock. All holders of Citigroup 
Stock, which include the Rights (other than an Acquiring Person, as 
defined in the Rights Plan), including the Plans, were, and will 
continue to be, treated in the same manner with respect to the 
acquisition of the Rights;
    (c) All shareholders of Citigroup Stock, including the Plans 
acquired, or will acquire, the same proportionate number of Rights 
based on the number of shares of Citigroup Stock held by such 
shareholders, including the Plans;
    (d) Except with respect to a Stock/Right Contribution where the 
determination to make the contribution will be made by Citigroup as a 
corporate entity, the acquisition of the Rights by the Participant 
Directed Plans was made, or will be made, pursuant to provisions of 
each such plan for individually-directed investment of participant 
accounts;
    (e) All decisions regarding the Rights that will be made by the 
Participant Directed Plans will be made in accordance with the 
provisions of such Participant Directed Plans for individually-directed 
investment of participant accounts by the individual participants whose 
accounts in each such Participant Directed Plan acquired the Rights in 
connection with the Offering, and if no instructions are received, the 
Rights will expire in accordance with the terms and conditions of the 
Rights Plan;

[[Page 61948]]

    (f) All decisions regarding the Rights (except in the case of an 
acquisition as a result of a Stock/Right Contribution, where the 
determination to make the contribution will be made by Citigroup as a 
corporate entity) will be made on behalf of the Citigroup Pension Plan 
by an Independent Fiduciary acting as an investment manager.
    (g) To the extent the Citigroup board of directors exercises its 
rights under the Offering to redeem the Rights at the redemption price 
set forth in the Offering, all shareholders of Citigroup Stock will be 
treated the same, including the Plans; and
    (h) The acquisition of the Rights as a result of a Stock/Right 
Contribution by Citigroup to the Plans shall result from a 
determination by Citigroup as a corporate entity.
    (i) Neither the Participant Directed Plan participants nor the 
Citigroup Pension Plan will pay any fees or commissions in connection 
with the exercise of the Rights other than the aggregate Purchase Price 
with respect to the Rights then being exercised and an amount equal to 
any applicable transfer tax or other governmental charge.

Section III: Definition

    The term ``Independent Fiduciary'' means an investment manager, as 
described in section 3(38) of the Act, that is:
    (a) Independent of, and unrelated to, Citigroup Inc. and its 
affiliates (Citigroup), and
    (b) appointed to act on behalf of the Citigroup Pension Plan for 
the purposes described in Section II.(f) above.
    For purposes of this proposed exemption, a fiduciary will not be 
deemed to be independent of, and unrelated to, Citigroup if: (i) Such 
fiduciary directly or indirectly controls, is controlled by, or is 
under common control with Citigroup; (ii) such fiduciary directly or 
indirectly receives any compensation or other consideration in 
connection with any transaction described in this proposed exemption, 
except that it may receive compensation for acting as an independent 
fiduciary from Citigroup in connection with the transactions described 
herein, if the amount or payment of such compensation is not contingent 
upon, or in any way affected by such fiduciary's decision; and (iii) 
more than 5 percent of such fiduciary's annual gross revenue in its 
prior tax year will be paid by Citigroup in the fiduciary's current tax 
year.
    Effective Date: If granted, this proposed exemption will be 
effective as of June 22, 2009, the date of the announcement of the 
Offering and will expire on June 10, 2012.

Summary of Facts and Representations

    1. The Applicants are Citigroup Inc. and its affiliates 
(Citigroup), the Citigroup 401(k) Plan, the Citibuilder 401(k) Plan for 
Puerto Rico (the Citibuilder Plan and collectively with the Citigroup 
401(k) Plan, the Participant Directed Plans), the Citigroup Pension 
Plan (and collectively with the Participant Directed Plans, the Plans). 
The Applicants requested this relief in an application dated December 
2, 2009 and a revised application dated July 23, 2010 (the 
Application).
    Citigroup Inc. is a global diversified financial services holding 
company whose businesses provide consumers, corporations, governments 
and institutions with a broad range of financial products and services. 
Citigroup has approximately 200 million customer accounts and does 
business in more than 140 countries. Citigroup currently operates, for 
management reporting purposes, via two primary business segments: 
Citicorp, generally consisting of its regional consumer banking 
businesses and institutional clients group; and Citi Holdings, 
generally consisting of its brokerage and asset management and local 
consumer lending businesses, and a special asset pool. Citigroup's 
consumer and corporate banking business is a global franchise 
encompassing, among other things, branch and electronic banking, 
consumer lending services, investment services, and credit and debit 
card services. Citibank, N.A. (Citibank) is a principal subsidiary of 
Citigroup. As of September 30, 2009, Citigroup and its subsidiaries had 
total consolidated assets of approximately $1.89 trillion.
    2. Citigroup sponsors the Citigroup 401(k) Plan and the Citigroup 
Pension Plan, while Citibank sponsors the Citibuilder 401(k) Plan for 
Puerto Rico. These Plans are involved in the transactions for which an 
exemption has been requested. These Plans are described, as follows:
    (a) Citigroup 401(k) Plan: The Citigroup 401(k) Plan is a stock 
bonus plan, a portion of which is designated as an employee stock 
ownership plan, and contains within it a cash or deferred arrangement 
under section 401(k) of the Code and a qualified Roth contribution 
program under section 402A of the Code. The Citigroup 401(k) Plan is 
intended to qualify under the provisions of section 401(a) of the Code, 
and its related trust is intended to be tax-exempt pursuant to section 
501(a) of the Code.
    The Applicants represent that the Citigroup 401(k) Plan allows 
participants to direct investments of their own contributions and a 
portion of the employer contributions into several investment 
alternatives, including Citigroup Stock. In the event that Citigroup, 
as a corporate entity, decides to make an in-kind contribution of 
Citigroup Stock and attached Rights (a Stock/Right Contribution) to the 
Citigroup 401(k) Plan, the participants receiving a Stock/Right 
Contribution can sell the Citigroup Stock (including the attached 
Rights) and invest the proceeds in any other fund offered in the 
Citigroup 401(k) Plan immediately upon such Citigroup Stock (and 
attached Rights) being credited to the participants' accounts.\20\
---------------------------------------------------------------------------

    \20\ In this regard, Section 408(e) of ERISA provides a 
statutory exemption for the acquisition or sale by a plan of 
qualifying employer securities (as defined in section 407(d)(5)) if 
certain conditions are met. The Department assumes that the 
Citigroup 401(k) Plan is intended to satisfy the requirements of 
section 404(c) of ERISA.
---------------------------------------------------------------------------

    The Citigroup 401(k) Plan is funded through a trust of which State 
Street Bank and Trust Company is the trustee. Reliance Trust Company is 
the sub-trustee for the Citigroup Stock fund offered as an investment 
option in the participant directed plans. The Plans Administration 
Committee of Citigroup Inc., a committee appointed by Citigroup, is the 
Plan Administrator of the Citigroup 401(k) Plan. The Applicants state 
that the 401(k) Plan Investment Committee is responsible for making all 
investment decisions related to the Citigroup 401(k) Plan, other than 
those investment decisions made by the participants and the decision to 
offer Citigroup stock as an investment in the Plan. Citigroup, as plan 
sponsor, is responsible for making all decisions regarding offering the 
Citigroup Stock fund as an investment option under the Citigroup 401(k) 
Plan.
    As of June 22, 2009 (the Record Date), the Citigroup 401(k) Plan 
had approximately 180,935 participants and total assets of 
$6,990,680,850. The shares of Citigroup Stock held by the Citigroup 
401(k) Plan were valued at approximately $393,394,961 as of the Record 
Date, and comprised approximately six percent (6%) of the total assets 
in the Citigroup 401(k) Plan. These shares represented approximately 
seven percent (7%) of the total shares of Citigroup Stock outstanding 
as of that date.
    (b) The Citibuilder 401(k) Plan for Puerto Rico: The Citibuilder 
Plan is a defined contribution profit sharing plan which includes a 
qualified cash or deferred arrangement intended to meet

[[Page 61949]]

the requirements of section 1165(e) of the Puerto Rico Internal Revenue 
Code of 1994, as amended (the PR Code). The Citibuilder Plan was 
established for the exclusive benefit of the eligible employees and 
beneficiaries of Puerto Rican subsidiaries of affiliates of Citibank. 
The Applicants assert that the Citibuilder Plan is not intended to 
meet, and has never in practice met, the requirements of section 401(a) 
of the Code. The Citibuilder Plan is subject to Title I of the Act.
    The Applicants represent that the Citibuilder Plan allows 
participants to direct investments of their own contributions and 
employer contributions into several investment alternatives, including 
Citigroup Stock. In the event that Citigroup, as a corporate entity, 
decides to make a Stock/Right Contribution to the Citibuilder Plan, the 
participants receiving a Stock/Right Contribution can sell the 
Citigroup Stock (including the attached Rights) and invest the proceeds 
in any other fund offered in the Citibuilder Plan immediately upon such 
Citigroup Stock (and attached Rights) being credited to the 
participants' accounts. The Applicants assert that the Citibuilder Plan 
is intended to satisfy the requirements of section 404(c) of ERISA.
    The Citibuilder Plan is funded through a trust. The trustee of the 
Citibuilder Plan is Banco Popular de Puerto Rico. The Plans 
Administration Committee of Citigroup Inc. is the Plan Administrator of 
the Citibuilder Plan. The Applicants state that the 401(k) Plan 
Investment Committee is responsible for making all investment decisions 
related to the Citibuilder Plan, other than those investment decisions 
made by the participants and the decision to offer Citigroup Stock as 
an investment in the Plan. Citigroup, as plan sponsor, is responsible 
for making all decisions regarding offering the Citigroup Stock fund as 
an investment option under the Citibuilder Plan.
    As of the Record Date, the Citibuilder Plan had approximately 1,739 
participants and total assets of $18,318,896. As of the Record Date, 
the shares of Citigroup Stock held by the Citibuilder Plan were valued 
at approximately $1,297,870 and comprised approximately seven percent 
(7%) of the total assets of the Citibuilder Plan. These shares 
represented approximately less than one percent (0.02%) of the total 
shares of Citigroup Stock outstanding as of the Record Date.
    (c) The Citigroup Pension Plan: The Citigroup Pension Plan is a 
frozen defined benefit pension plan that generally provided benefits to 
eligible participants under a cash balance formula. Certain 
participants who have a protected benefit that was accrued under a plan 
that was merged into the Citigroup Pension Plan may be eligible to have 
a portion of their benefit calculated using a final average pay formula 
(Grandfathered Participants). Effective January 1, 2007, the Citigroup 
Pension Plan was closed to new participants. Effective January 1, 2008, 
participants' hypothetical cash balance accounts ceased benefit 
accruals, although these hypothetical accounts will continue to accrue 
interest credits. Grandfathered Participants are not subject to the 
benefit accrual freeze and continue to accrue benefits. The Applicants 
assert that the Citigroup Pension Plan is intended to qualify under the 
provisions of section 401(a) of the Code, and its related trust is 
intended to be tax-exempt pursuant to section 501(a) of the Code.
    The Citigroup Pension Plan is funded through a trust of which The 
Bank of New York Mellon is the trustee. The Plans Administration 
Committee is the Plan Administrator of the Citigroup Pension Plan. The 
Applicants state that the Pension Plan Investment Committee has 
oversight over all investment decisions related to the Citigroup 
Pension Plan.
    As of December 31, 2008, the Citigroup Pension Plan had 
approximately 260,890 participants and total assets of approximately 
$11,285,250,916. The Applicants note that the Citigroup Pension Plan 
did not hold any Citigroup Stock as of the Record Date.
    3. The Applicants provide that Citigroup has accumulated a 
substantial amount of recognized net deferred tax assets, such as net 
operating loss carryforwards and tax credits (the Tax Benefits), which 
is included in its tangible common equity. As of December 31, 2009, 
Citigroup had recognized net deferred tax assets of approximately $46.1 
billion. Citigroup expects to utilize the Tax Benefits to offset future 
taxable income. The Applicants assert that Citigroup's utilization of 
the Tax Benefits is in the interests of all Citigroup Stockholders, 
including the Plans, the participants and beneficiaries.
    The Applicants note that Citigroup's ability to utilize these 
deferred tax assets to offset future taxable income may be 
significantly limited in the event that Citigroup experiences an 
``ownership change'' as defined in section 382 of the Code.\21\ 
Specifically, section 382 provides that a ``loss corporation'' (i.e., a 
corporation with net operating loss carryforwards and certain other tax 
attributes) that experiences an ownership change will generally be 
subject to an annual limitation after the ownership change on the use 
of such attributes. The Applicants assert that in Citigroup's case, 
this means that, should an ownership change occur, Citigroup could 
experience a limitation on its ability to utilize a portion of its tax 
deferred assets. Since tax losses and tax credits have finite carryover 
periods, the limitation could negatively affect Citigroup's ability to 
use the tax losses and tax credits before they expire. The precise 
amount of the limitation that would arise from an ownership change 
under section 382 on Citigroup's ability to utilize its deferred tax 
assets would depend on the value of Citigroup's stock and prevailing 
interest rates at the time of the ownership change.
---------------------------------------------------------------------------

    \21\ The Applicants note that generally, an ownership change 
occurs if the ``five percent shareholders'' (as defined in section 
382 of the Code) of a loss corporation increase their percentage 
ownership interest in the loss corporation by more than 50 
percentage points during a rolling three year testing period.
---------------------------------------------------------------------------

    4. The Applicants state that given the possibility of such negative 
consequences, on June 9, 2009, the board of directors of Citigroup 
adopted the Tax Benefits Preservation Plan (the Rights Plan) in order 
to preserve its ability to use the tax benefits. It is represented that 
the Rights Plan uses mechanics and structures very similar to 
traditional shareholder rights plans (commonly known as ``poison pill'' 
plans) in that it creates disincentives for those who engage in certain 
activities. Unlike traditional shareholder rights plans which are 
designed to deter unsolicited takeover bids, section 382-focused rights 
plans are designed to protect tax assets by deterring actions that 
could increase the likelihood of a loss of tax assets.\22\ As is the 
case with the Rights Plan, this is generally accomplished by seeking to 
deter any shareholder from accumulating positions that would qualify 
such shareholder as a ``five percent shareholder'' under applicable tax 
laws.
---------------------------------------------------------------------------

    \22\ The Applicants state that Citigroup's Rights Plan also 
differs from the traditional shareholder rights plan in that the 
Rights Plan does not apply to acquisitions of a majority of 
Citigroup Stock made in connection with an offer to acquire 100% of 
Citigroup Stock, and lasts for only 36 months. Traditional 
shareholder rights plans generally last for 10 years.
---------------------------------------------------------------------------

    The Applicants note that, as with the many companies that have 
adopted section 382-focused rights plans in the past, the Rights Plan 
has the effect of significantly diluting the value of the shares of the 
shareholder whose acquisitions of Citigroup Stock caused

[[Page 61950]]

the Rights Plan to become exercisable (the Acquiring Person) by 
allowing all other shareholders to purchase, for each Right, preferred 
stock equivalent to one share of Citigroup Stock but at half the price 
of a share of Citigroup Stock at the time of the purchase. 
Specifically, the mechanisms by which the Rights Plan works are as 
follows:
    (a) In connection with the adoption of the Rights Plan, on June 9, 
2009, Citigroup's board of directors declared a dividend of one 
preferred stock purchase right (a Right) for each outstanding share of 
Citigroup Stock. The dividend was payable to holders of record of 
Citigroup Stock on the Record Date, as well as shares of Citigroup 
Stock issued after such date and before the Final Expiration Date (June 
10, 2012). Unless and until the Rights become exercisable (as described 
below), the Rights are not severable from Citigroup Stock, have no 
independent voting or dividend rights associated with them and can be 
transferred only in connection with the transfer of the underlying 
shares of Citigroup Stock.
    (b) Each Right will initially represent the right to purchase, for 
$20.00 (the Purchase Price), one one-millionth of a share of Series R 
Participating Cumulative Preferred Stock, $1.00 par value per share 
(the Series R Preferred Stock).
    (c) The Rights are not exercisable until the earlier of (i) the 
close of business on the 10th business day after the date (the Stock 
Acquisition Date) of the announcement that a person has become an 
Acquiring Person (as defined in the Rights Plan) and (ii) the close of 
business on the 10th business day (or such later day as may be 
designated by Citigroup's board of directors before any person has 
become an Acquiring Person) after the date of the commencement of a 
tender or exchange offer by any person which could, if consummated, 
result in such person becoming an Acquiring Person. The ``Distribution 
Date'' is referred to as the date that the Rights become exercisable.
    (d) The Applicants state that it is important to note that the 
Rights may never become exercisable because Citigroup retained the 
ability to unilaterally (i) amend the Rights Plan in any manner prior 
to the occurrence of a Distribution Date, including by modifying the 
definition of ``Final Expiration Date'' and effectively terminating the 
Rights Plan immediately or (ii) redeem the Rights for $0.00001 per 
Right at any time prior to a Distribution Date.
    (e) After any person has become an Acquiring Person, each Right 
(other than Rights treated as beneficially owned under certain U.S. tax 
rules by the Acquiring Person) can be exercised by the holder to 
purchase for the Purchase Price a number of shares of Series R 
Preferred Stock having a market value of twice the Purchase Price. 
Basically, all holders of these Rights (other than the Acquiring 
Person) will have the right to acquire one one-millionth of a share of 
Series R Preferred Stock, which will be the economic equivalent (e.g., 
the same voting rights, dividend rights, trading price and market 
value) of one share of Citigroup Stock, for one-half (\1/2\;) of the 
price of a share of Citigroup Stock as of the Distribution Date. Any 
time after any person has become an Acquiring Person (but before any 
person becomes the beneficial owner of 50% or more of the Citigroup 
Stock), the board of directors of Citigroup may elect to implement such 
dilution remedy against an Acquiring Person by exchanging any Rights 
(other than the Rights beneficially owned by the Acquiring Person) for 
one one-millionth of a share of Series R Preferred Stock per Right 
(instead of having holders exercise Rights and pay the Purchase Price).
    (f) In the event that an Acquiring Person causes an ownership 
change, such Acquiring Person would almost certainly suffer extreme 
dilution due to the triggering of the Distribution Date (and 
exercisability of the Rights under the Rights Plan). This creates a 
significant disincentive for any investor to acquire a sufficient 
position, or to increase its position in Citigroup Stock, to cause such 
person to be treated as a ``five percent shareholder'' for section 382 
purposes. In addition, while exercise of the Rights by non-Acquiring 
Person shareholders is not automatic, any such shareholder who does not 
decide to exercise the Rights would almost certainly also experience 
significant dilution.
    (g) Citigroup's board of directors may redeem all of the Rights at 
a price of $0.00001 per Right at any time before a Distribution Date.
    (h) Prior to the Distribution Date, the Rights will be inseparable 
from the corresponding Citigroup Stock and not evidenced by a separate 
certificate and, as a result, the Rights will not be transferrable 
separately from the corresponding Citigroup Stock. Instead, the Rights 
will be evidenced by the certificates for (or current ownership 
statements issued with respect to uncertificated shares in lieu of 
certificates for) and will be transferred with Citigroup Stock, and the 
registered holders of Citigroup Stock will be deemed to be the 
registered holders of the Rights.
    (i) After the Distribution Date, the rights agent will mail 
separate certificates evidencing the Rights to each record holder of 
Citigroup Stock as of the close of business on the Distribution Date, 
and thereafter the Rights will be transferable separately from 
Citigroup Stock. The Rights will expire on June 10, 2012 (the Final 
Expiration Date), with no value, unless the Rights are earlier 
exchanged or redeemed or the Plan is amended by the board of directors 
of Citigroup.
    (j) At any time prior to the Distribution Date, the Rights Plan may 
be amended in any respect. At any time after the occurrence of a 
Distribution Date, the Rights Plan may be amended in any respect that 
does not adversely affect Rights holders (other than any Acquiring 
Person).
    (k) A Rights holder has no rights as a stockholder of Citigroup as 
a result of holding the Rights, including the right to vote and to 
receive dividends. The Rights Plan includes antidilution provisions 
designed to maintain the effectiveness of the Rights.
    5. Citigroup issued a press release regarding the adoption of the 
Rights Plan on June 10, 2009. In addition, shareholders of Citigroup 
Stock as of the Record Date, including participants in the Participant 
Directed Plans who were invested in the Citigroup Stock fund, were 
notified of the adoption of the Rights Plan by letter, dated June 22, 
2009 (the Record Date). The notice was sent to active employees by 
electronic mail (with the relevant link) and to all others by first 
class mail. Shareholders did not have to pay any amount to acquire the 
Rights. As of the Record Date, Citigroup had approximately 196,000 
registered Citigroup Stock shareholders of record. As of the Record 
Date, there were 5,671,743,807 shares of Citigroup Stock issued and 
outstanding.
    On March 2, 2010, the Applicants informed the Department that 
Citigroup filed a February 26, 2010 preliminary proxy statement, 
Schedule 14A, pursuant to Section 14(a) of the Securities Exchange Act 
of 1934 (1934 Act), with the Securities Exchange Commission (SEC) 
providing the contents of the proxy statement that was mailed to 
Citigroup stockholders, for the Citigroup annual stockholders' meeting 
held on April 20, 2010. Proposal 6 of the proxy statement asks that the 
stockholders at the meeting ratify the June 9, 2009 board of directors' 
adoption of the Rights Plan. The proxy statement noted that because the 
Rights Plan protects the value of the deferred tax assets for the 
benefit of all

[[Page 61951]]

stockholders, the board of directors recommends that the stockholders 
vote for ratification of the Rights Plan. On April 26, 2010, the 
Applicants informed the Department that Form 8-K, filed by Citigroup on 
April 23, 2010 with the SEC pursuant to Section 13 or 15(d) of the 1934 
Act, reported that the proposal to ratify the adoption of the Rights 
Plan was approved by the stockholders at the annual meeting held on 
April 20, 2010. On April 23, 2010, Citigroup shareholders ratified and 
approved the adoption of the Rights Plan.
    6. The authorized capital stock of Citigroup consists of 15 billion 
shares of Citigroup Stock, with a par value $0.01 per share, and 30 
million shares of preferred stock, without a par value per share. The 
Citigroup Stock is traded on the NYSE under the symbol of C. It is 
represented that the closing price of the Citigroup Stock on June 19, 
2009, before the Offering was $3.17 per share. On June 22, 2009, the 
closing price of the Citigroup Stock was $3.00 per share. It is 
represented that sufficient shares of the Series R Preferred Stock will 
be available to satisfy fully all exercise elections made in connection 
with the Rights.
    7. The Applicants note that the acquisition by each of the Plans of 
the Rights occurred or that will occur, in connection with the holding 
or acquisition of Citigroup Stock as a result of the Offering made 
available by Citigroup, on the same terms to all shareholders of the 
Citigroup Stock, including the acquisition of the Rights at no cost. 
The Applicants assert that neither the Participant Directed Plan 
participants nor the Citigroup Pension Plan will pay any fees or 
commissions in connection with the exercise of the Rights other than 
the aggregate Purchase Price with respect to the Rights then being 
exercised and an amount equal to any applicable transfer tax or other 
governmental charge.
    8. Citigroup and its affiliates, as employers any of whose 
employees are covered by one or more of the Plans, subject to Title I 
of the Act, and as fiduciaries of one or more of the Plans, are parties 
in interest with respect to each such plan, pursuant to section 
3(14)(A) and section 3(14)(C) of the Act, respectively. In addition, 
Citigroup and its affiliates, as employers any of whose employees are 
covered by one or more of the Plans, which are subject to Title II of 
the Act, and as fiduciaries with respect to one or more of such Plans 
are disqualified persons with respect to each such Plan, pursuant to 
section 4975(e)(2)(A) and section 4975(e)(2)(C) of the Code, 
respectively.
    9. It is represented that the Citigroup Stock, the Rights, and the 
Series R Preferred Stock satisfy the definition of ``employer 
securities,'' as set forth under section 407(d)(1) of the Act \23\ and 
that the Citigroup Stock and Series R Preferred Stock satisfy the 
definition of a ``qualifying employer security,'' as set forth in 
section 407(d)(5) of the Act. However, the Rights do not satisfy the 
definition of ``qualifying employer securities,'' as defined under 
section 407(d)(5) \24\ of the Act because the Rights, if considered 
separately from Citigroup Stock as a security under section 3(20) of 
the Act \25\, is not stock, a marketable obligation or an interest in a 
publicly-traded partnership. Under section 407(a)(1) of the Act, a plan 
may not acquire or hold any ``employer security'' which is not a 
``qualifying employer security.'' Further, section 406(a)(1)(E) of the 
Act prohibits the acquisition, on behalf of a plan, of any ``employer 
security'' in violation of section 407(a) of the Act. Section 406(a)(2) 
of the Act prohibits a fiduciary who has authority or discretion to 
control or manage the assets of a plan to permit the plan to hold any 
``employer security'' that violates section 407(a) of the Act.
---------------------------------------------------------------------------

    \23\ Section 407(d)(1) of the Act defines the term, ``employer 
security,'' as ``a security issued by an employer of employees 
covered by the plan, or by an affiliate of such employer.''
    \24\ Section 407(d)(5) of the Act defines the term ``qualifying 
employer security,'' as an employer security which is stock, a 
marketable obligation (as defined in subsection (e)), or an interest 
in a publicly traded partnership * * *''
    \25\ Section 3(20) of ERISA states that ``security'' has the 
same meaning as such term under section 2(1) of the Securities Act 
of 1933, as amended (the ``Securities Act''). Section 2(1) of the 
Securities Act defines the term ``security'' as ``any note, stock, 
treasury stock, security future, bond, debenture, evidence of 
indebtedness, certificate of interest or participation in any 
profit-sharing agreement, collateral-trust certificate, 
preorganization certificate or subscription, transferable share, 
investment contract, voting-trust certificate, certificate of 
deposit for a security, fractional undivided interest in oil, gas, 
or other mineral rights, any put, call, straddle, option, or 
privilege on any security, certificate of deposit, or group or index 
of securities (including any interest therein or based on the value 
thereof), or any put, call, straddle, option, or privilege entered 
into on a national securities exchange relating to foreign currency, 
or, in general, any interest or instrument commonly known as a 
``security'', or any certificate of interest or participation in, 
temporary or interim certificate for, receipt for, guarantee of, or 
warrant or right to subscribe to or purchase, any of the 
foregoing.''
---------------------------------------------------------------------------

    The Applicants have requested retroactive relief, effective as of 
June 22, 2009, the Record Date of the Offering, from the prohibitions, 
as set forth in Title I of the Act, for the acquisition and holding of 
the Rights by the Plans. The Applicants have also requested the same 
retroactive relief from the prohibitions, as set forth in section 
4975(c)(1)(A) through (E) of the Code, for the acquisition of the 
Rights by the Citigroup 401(k) Plan and the Citigroup Pension Plan.
    10. The Applicants state that the Rights will only be exercisable 
in the event Citigroup experiences an ownership change under section 
382 of the Code. The Rights will remain outstanding until the Final 
Expiration Date (or June 10, 2012), unless the Rights are earlier 
exchanged or redeemed pursuant to the terms and conditions of the 
Rights Plan or the Rights Plan is amended. The Applicants assert that 
the Rights issued by Citigroup are transferable only in connection with 
the transfer of the underlying shares of Citigroup Stock and cannot be 
separated from the Citigroup Stock unless and until such Rights are 
exercisable. This means that the Plans cannot simply refuse to accept 
the Rights. Since the Rights are inseparable from Citigroup Stock, it 
would be impossible for the Plans to hold Citigroup Stock (a qualifying 
employer security) and not engage in a prohibited transaction. Absent 
an exemption, the Plans would have to divest themselves of all 
Citigroup Stock in order to not hold the Rights and thereby avoid a 
prohibited transaction.
    11. With regard to the Rights acquired by the Participant Directed 
Plans and potentially to be acquired in the future, it is represented 
by plan design that the participants of the Participant Directed Plans 
control the assets in their accounts in such Plans and that no plan 
fiduciary had the authority to exercise any control over such assets. 
Therefore, on the Record Date, a Right attached to each Citigroup Stock 
beneficially owned by a participant's account on that date and, thus, 
the Rights were allocated to the accounts of the participants in such 
Plans in proportion to the Citigroup Stock beneficially owned by each 
such account. In the event that the Participant Directed Plans acquire 
Citigroup Stock in the future, a Right will attach to each Citigroup 
Stock beneficially acquired by each participant's account and, thus, 
the Rights will be allocated to the accounts of the participants in 
such Plans in proportion to the Citigroup Stock beneficially acquired 
by each such account. In addition, it is represented that each 
participant in the Participant Directed Plans will be given the 
opportunity to exercise the Rights upon the Distribution Date in 
accordance with the terms and conditions of the Rights Plan. 
Accordingly, each participant will be able to make an independent 
decision whether to acquire Citigroup

[[Page 61952]]

Stock (except in the case of a Stock/Right Contribution as discussed 
below) and the attached Rights in the future and whether to exercise 
the Rights following the Distribution Date and receive shares of Series 
R Preferred Stock with a value equal to twice the Purchase Price.
    12. With respect to the Citigroup Pension Plan, it is represented 
that the Citigroup Pension Plan did not hold any Citigroup Stock as of 
the Record Date. However, under the terms of the Citigroup Pension 
Plan, the Pension Plan Investment Committee of Citigroup Inc., as the 
named fiduciary of such Plan, has the authority to appoint a third 
party manager unaffiliated with Citigroup and its affiliates to serve 
as a ``fiduciary'' (within the meaning of section 3(21)(A) of the Act) 
and an ``investment manager'' (within the meaning of section 3(38) of 
the Act) (an Independent Fiduciary) over all or a portion of the assets 
of the Citigroup Pension Plan. Under investment guidelines applicable 
to the assets under the supervision and management of certain 
Independent Fiduciaries, such Independent Fiduciaries may be able to 
cause the Citigroup Pension Plan to invest in Citigroup Stock in 
accordance with sections 408(e) and 407 of the Act. In the event that 
the Citigroup Pension Plan acquires Citigroup Stock before the Final 
Expiration Date, it is represented that all decisions regarding the 
acquisition (except in the case of a Stock/Right Contribution as 
discussed below), holding and exercise or other disposition of 
Citigroup Stock and, therefore, the Rights by the Citigroup Pension 
Plan will be exercised by an Independent Fiduciary. In addition, 
Citigroup Inc. may in the future contemplate making employer 
contributions to one or more of the Plans in shares of Citigroup Stock 
and the Rights attached to such shares (a Stock/Rights Contribution). 
The determination to make such Stock/Right Contribution will be made by 
Citigroup as a corporate entity.
    13. The Applicants represent that all shareholders of Citigroup 
Stock on or after the Record Date, including the participants in the 
Participant Directed Plans and any Independent Fiduciary of the 
Citigroup Pension Plan, have the ability to exercise the Rights 
acquired with Citigroup Stock after the Distribution Date through the 
close of business on the Final Expiration Date, unless earlier 
exchanged or redeemed in accordance with the terms and conditions of 
the Rights Plan. This deadline for exercising the Rights was 
implemented by Citigroup as the issuer of the Rights. Neither the 
shareholders (other than executive officers of Citigroup who are also 
shareholders of Citigroup Stock), the participants in the Participant 
Directed Plans nor any Independent Fiduciary had any voice in setting 
the deadline with respect to the Rights.
    14. The Applicants assert that the acquisition, holding, and 
exercise or other disposition of the Rights by the Plans, pursuant to 
the Offering, is in the interests of and beneficial to such Plans and 
to the participants and beneficiaries of such Plans. The Applicants 
note that the existence of the Rights Plan and issuance of Rights is 
beneficial to the Plans to the extent they are shareholders of 
Citigroup Stock because the Rights Plan is explicitly designed to 
preserve Citigroup's ability to utilize its Tax Benefits (which in 
total had a reported value of $46.1 billion as of December 31, 2009) 
and to avoid limitations on the use of any portion of such amount. 
Citigroup's ability to utilize its Tax Benefits has significant value 
to Citigroup's shareholders, including the Plans that hold Citigroup 
Stock.
    It is represented that the Plans' ability to acquire, hold and 
dispose of the Rights is in the interest of participants and 
beneficiaries because it allows them to hold Citigroup Stock. If the 
requested exemption were not granted, the Applicants represent that the 
Plans would not be permitted to acquire, hold or dispose of the Rights. 
Since the Rights are not severable from Citigroup Stock until they 
become exercisable, the Plans would not be permitted to acquire, hold 
or dispose of Citigroup Stock, even though the Citigroup Stock itself 
is a qualifying employer security and such actions are contemplated by 
the statutory scheme of ERISA.
    The Applicants assert that the Plans' ability to exercise or 
otherwise dispose of the Rights is beneficial to the Plans because, if 
the Rights become exercisable, they will allow the Plans to acquire 
additional equity in Citigroup at a discount on the same terms and 
conditions as other holders of Citigroup Stock. If the Plans held 
Citigroup Stock but were not able to exercise the Rights, the value of 
their shares would be diluted significantly, resulting in harm to the 
Plans. However, the Applicants state that it is important to note that 
if the Rights Plan is successful, shareholders will be deterred from 
becoming Acquiring Persons and the Rights will never become 
exercisable.
    15. It is represented that the acquisition, holding, and exercise 
or other disposition of the Rights by the Plans will be protective of 
such Plans and of the participants and beneficiaries of such Plans in 
that all of the shareholders of Citigroup Stock, including the Plans, 
will be treated in a similar manner with respect to the Rights. In 
addition, all decisions regarding the future acquisition (except in the 
case of an acquisition as a result of a Stock/Right Contribution, where 
the determination to make the contribution will be made by Citigroup as 
a corporate entity), holding and exercise or other disposition of the 
Rights by the Participant Directed Plans will be made in accordance 
with the provisions of such Plans for individually-directed investment 
of participant accounts by the individual participants. All decisions 
regarding the future acquisition (except in the case of an acquisition 
as a result of a Stock/Right Contribution, where the determination to 
make the contribution will be made by Citigroup as a corporate entity), 
holding and exercise or other disposition of the Rights by the 
Citigroup Pension Plan will be made by an Independent Fiduciary.
    16. It is represented that the acquisition, holding, and exercise 
or other disposition of the Rights by the Plans is feasible and all 
shareholders of the Citigroup Stock (other than an Acquiring Person), 
including the Plans, were, and will be, treated in the same manner with 
respect to any past and future acquisition, holding, and exercise or 
other disposition of the Rights. With regard to the fact that the past 
acquisition and holding of the Rights were consummated prior to 
obtaining an exemption due to the timing of the Offering, it is 
represented that the fiduciaries were required to participate in the 
Offering before requesting the proposed exemption and such fiduciaries 
had no control over the timing of the transactions.
    17. In summary, the Applicants represent that the proposed 
transactions satisfy the statutory requirements for an exemption under 
section 408(a) of the Act and section 4975(c)(2) of the Code because:
    (a) The acquisition by each of the Plans of the Rights occurred or 
will occur in the future in connection with the holding or acquisition 
of Citigroup Stock as a result of the Offering made available by 
Citigroup on the same terms to all shareholders of Citigroup Stock, 
including the acquisition of the Rights at no cost;
    (b) The past acquisition of the Rights by the Participant Directed 
Plans resulted from an independent act of Citigroup as a corporate 
entity. The acquisition of the Citigroup Stock with the attached Rights 
by (i) the Participant Directed Plans in the future will occur at the 
direction of individual

[[Page 61953]]

participants, (ii) the Citigroup Pension Plan at the direction of the 
Independent Fiduciary, or (iii) as a result of a Stock/Right 
Contribution where the determination to make the contribution will be 
made by Citigroup as a corporate entity; in all cases, incidental to, 
and as a consequence of, the purchase or other acquisition of Citigroup 
Stock. All holders of the Rights holding Citigroup Stock (other than an 
Acquiring Person), including the Plans, were, and will continue to be, 
treated in the same manner with respect to the acquisition of the 
Rights;
    (c) All shareholders of Citigroup Stock, including the Plans 
acquired, or will acquire, the same proportionate number of Rights 
based on the number of shares of Citigroup Stock held by such 
shareholder, including the Plans;
    (d) Except with respect to a Stock/Right Contribution, the 
acquisition of the Rights by the Participant Directed Plans was made, 
or will be made, pursuant to provisions of each such plan for 
individually-directed investment of participant accounts;
    (e) All decisions regarding the holding and exercise or other 
disposition of the Rights that will be made by the Participant Directed 
Plans will be made in accordance with the provisions of such 
Participant Directed Plans for individually-directed investment of 
participant accounts by the individual participants whose accounts in 
each such Participant Directed Plan acquired the Rights in connection 
with the Offering, and if no instructions are received, the Rights will 
expire in accordance with the terms and conditions of the Rights Plan; 
and
    (f) The authority for all decisions regarding the acquisition, 
holding and exercise or other disposition of the Rights by the 
Citigroup Pension Plan will be exercised by an Independent Fiduciary.
    (g) Neither the Participant Directed Plan participants nor the 
Citigroup Pension Plan will pay any fees or commissions in connection 
with the exercise of the Rights other than the aggregate Purchase Price 
with respect to the Rights then being exercised and an amount equal to 
any applicable transfer tax or other governmental charge.

 Notice to Interested Persons

    The Applicants represent that within thirty (30) days of the date 
of publication of the proposed exemption in the Federal Register, the 
Applicants will provide notice of the proposed exemption (consisting of 
a copy of the proposed exemption as published in the Federal Register 
and the supplemental statement required by Department of Labor 
Regulation Section 2570.43(a)(2), (collectively, the Notice to 
Interested Persons)) to (i) all current participants (active and 
inactive) in the Participant Directed Plans, and (ii) the current 
Independent Fiduciaries (as defined in the proposed exemption) of the 
Citigroup Pension Plan. With respect to the Participant Directed Plans, 
the Applicants will provide all current participants with the Notice to 
Interested Persons, as well as an explanatory cover letter, by first 
class mail. The Notice to Interested Persons may be included in the 
same package that includes the quarterly statements and other 
participant notices if the timing of the mailing of the Notice to 
Interested Persons coincides with the timing of the mailing of such 
other statements and notices. With respect to the Citigroup Pension 
Plan, the Applicants will provide the Independent Fiduciaries with the 
Notice to Interested Persons by electronic mail, with a request for a 
delivery receipt for the electronic mail.
    The Department must receive all written comments and requests for a 
hearing no later than thirty (30) days from the last date of the 
mailing of the Notice to Interested Persons.

FOR FURTHER INFORMATION CONTACT: Wendy M. McColough of the Department, 
telephone (202) 693-8540. (This is not a toll-free number.)

The West Coast Bancorp 401(k) Plan (the Plan) Located in Lake 
Oswego, Oregon
[Application No. D-11611]

Proposed Exemption

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act and section 4975(c)(2) of the 
Code and in accordance with the procedures set forth in 29 CFR Part 
2570, Subpart B (55 FR 32836, 32847, August 10, 1990).\26\ If the 
exemption is granted, the restrictions of sections 406(a)(1)(A) and 
(E), 406(a)(2), 406(b)(1), 406(b)(2), and 407(a) and the sanctions 
resulting from the application of section 4975(c)(1)(A) and (E) of the 
Code, shall not apply, effective January 29, 2010, to: (1) the 
acquisition of stock rights (the Rights) by the Plan issued by the West 
Coast Bancorp, Inc. (Bancorp), the Plan sponsor and a party in interest 
with respect to the Plan under the terms and conditions of a Rights 
offering (the Offering); and (2) the holding of the Rights by the Plan 
until their expiration, during the subscription period (the 
Subscription Period) of the Offering, provided that the following 
conditions were met:
---------------------------------------------------------------------------

    \26\ For purposes of this proposed exemption, references to the 
provisions of Title I of the Act, unless otherwise specified, refer 
also to the corresponding provisions of the Code.
---------------------------------------------------------------------------

    (a) The receipt of the Rights by the Plan occurred in connection 
with the Offering and was made available by Bancorp on the same terms 
to all shareholders (the Shareholders) of the common stock of Bancorp 
(Common Stock);
    (b) The acquisition of the Rights by the Plan resulted from an 
independent act of Bancorp as a corporate entity, and all holders of 
the Rights, including the Plan, were treated in the same manner with 
respect to such acquisition;
    (c) All Shareholders of Common Stock, including the Plan, received 
the same proportionate number of Rights based on the number of shares 
of Common Stock held by such Shareholders;
    (d) All decisions regarding the Rights held by the Plan were made 
by the individual Plan participants whose accounts in the Plan received 
the Rights, in accordance with the provisions under the Plan for 
individually-directed investment of such account; and
    (e) The Plan did not pay any fees or commissions in connection with 
the acquisition and or holding of the Rights.
    Effective Date: This proposed exemption, if granted, will be 
effective as of January 29, 2010, the commencement date of the Offering 
(the Commencement Date).

Summary of Facts and Representations

The Parties

    1. Bancorp, which maintains its principal place of business in Lake 
Oswego, Oregon, is the bank holding company for West Coast Bank (the 
Bank), its primary subsidiary. The Bank maintains $2.7 billion in 
assets and operates in 65 Oregon and Washington state locations. As of 
the Commencement Date, there were 87,171,915 shares of Common Stock and 
121,328 shares of Series B Preferred Stock (Series B Preferred Stock) 
outstanding. As of March 9, 2010, Bancorp was authorized to issue 250 
million additional shares of Common Stock in order to raise capital, as 
discussed below.
    2. Bancorp sponsors the Plan, a Code section 401(k) profit sharing 
plan, for its subsidiaries. As of the Commencement Date, the Plan had 
752 participants and assets totaling $22,717,737.22. Under the Plan, 
participants may make pre-tax and after-tax 401(k) contributions. 
Eligible employees may also make rollover contributions into the Plan 
from other employers' qualified plans or from IRAs. Further, the Plan 
allows

[[Page 61954]]

participants to self-direct the investment of their individual accounts 
pursuant to section 404(c) of the Act. West Coast Trust Company, a 
wholly-owned subsidiary of Bancorp serves as the Plan's directed 
trustee (the Trustee).
    3. The Plan provides participants with several investment options, 
which include the Federated Government Obligations Money Market Fund 
(the Money Market Fund) and the West Coast Bancorp Employer Stock Fund 
(the Stock Fund). The Money Market Fund provides conservative investors 
with current income and stable principal. Accordingly, the Money Market 
Fund invests primarily in a portfolio of short-term U.S. Treasury and 
government agency securities.
    The Stock Fund allows participants to invest voluntarily in the 
Common Stock. As of January 19, 2010, the Plan held 454,923.56 shares 
of common stock or approximately 0.52% of the then outstanding shares 
of Common Stock, with a value of $1,187,350 based on the $2.61 closing 
price on the NASDAQ Global Select Market. The Common Stock trades under 
ticker symbol ``WCBO.'' As of the Commencement Date, the Common Stock 
represented approximately 5.23% of Plan assets as of the Commencement 
Date.

Regulatory Involvement

    4. From 2007 to early 2009, the value of the Common Stock decreased 
by over 90 percent as a result of the stock market crash, the subprime 
mortgage crisis and the recession. Bancorp represents that the Common 
Stock's price reflected the trend for comparable bank stocks. Although 
Bancorp had exposure to home mortgage loans that were eventually 
written down, Bancorp represents that it was not a recipient of any 
funds from the U.S. Treasury's Troubled Asset Relief Program.
    5. On March 30, 2009, the Federal Deposit Insurance Corporation 
(FDIC) and the Oregon Division of Finance and Corporate Securities 
(DFCS) issued a joint Report of Examination (ROE) following a routine 
examination of the Bank. The ROE, as summarized, stated that the Bank 
had engaged in unsafe and unsound banking practices by: (a) Operating 
with management whose policies and practices were detrimental to the 
Bank; (b) operating with a board of directors which failed to provide 
adequate supervision over and direction to the active management of the 
Bank; (c) operating with inadequate capital in relation to the kind and 
quality of assets held by the Bank; (d) operating with a large volume 
of poor quality loans; (e) engaging in unsatisfactory lending and 
collection practices; (f) operating in such a manner as to produce 
operating losses; (g) operating with inadequate provisions for 
liquidity; and (h) operating in violation of Part 323 of the FDIC Rules 
and Regulations, 12 CFR Part 3234, concerning appraisals; and (i) 
operating in violation of Part 353 of the FDIC Rules and Regulations, 
12 CFR Part 353, concerning suspicious activity reporting.
    6. On October 15, 2009, the FDIC, the DFCS and the Bank entered 
into a Stipulation and Consent to the Issuance of an Order to Cease and 
Desist (the Consent Agreement) (FDIC-09-4536). In the Consent 
Agreement, the Bank, without admitting or denying alleged charges of 
unsafe or unsound banking practices and violations of law and/or 
regulations, agreed to the issuance of an Order to Cease and Desist 
(the Consent Order). On October 22, 2009, the FDIC and the DFCS issued 
the Consent Order which essentially required the Bank to take steps 
outlined in the Consent Agreement. In this regard, The Bank was 
required to increase its capital levels, reduce underperforming assets, 
submit plans for a securities issuance to the FDIC, set capital and 
leverage ratios, prevent fraudulent lending, and eliminate dividends 
within certain time frames.\27\ The Bank represents in its Form 10-K 
(Annual Report Pursuant to Section 13 or 15(d) of the Securities 
Exchange Act of 1934) filing for its fiscal year ending December 31, 
2009 that it is in material compliance with all aspects of the Consent 
Order. On July 15, 2010, the FDIC and DFCS issued a joint termination 
of the Consent Order.
---------------------------------------------------------------------------

    \27\ Bancorp also entered a written agreement with the Federal 
Reserve Bank of San Francisco (the Reserve Bank) and the DFCS on 
December 15, 2009, agreeing not to take any dividends or other 
payments representing a reduction in capital from the Bank without 
the prior consent of the Reserve Bank and the DFCS.
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New Investment in the Bank

    7. On October 23, 2009, Bancorp entered into investment agreements 
with 52 outside investors as part of a private sale of $155 million of 
newly-issued preferred stock and warrants issued by Bancorp (the 
Capital Raise). Sandler O'Neill and Partners, L.P., Bancorp's financial 
advisor with respect to the Capital Raise, represented Bancorp with the 
outside investors, none of whom are parties in interest with respect to 
the Plan.
    During the Capital Raise, Bancorp received net proceeds of $139.2 
million from the investors in exchange for 1,428,849 shares of 
mandatorily convertible cumulative participating preferred stock (the 
Series A Preferred Stock), 121,328 shares of mandatorily convertible 
cumulative participating preferred stock (the Series B Preferred 
Stock), and Class C warrants (the Class C Warrants), exercisable for a 
total of 240,000 shares of Series B Preferred Stock (each at a price of 
$100 per share together with certain other expired warrants).
    As a result of shareholder approvals, on January 20, 2010, shares 
of Series A Preferred Stock issued by Bancorp in the Capital Raise were 
automatically converted into an aggregate of 71,442,450 shares of 
Common Stock on January 27, 2010. Shares of Series B Preferred Stock 
issued in the Capital Raise became automatically convertible into 12 
million shares of Common Stock upon transfer of such preferred stock to 
third parties in a ``widely dispersed'' offering.\28\ Finally, shares 
of Series B Preferred Stock issuable upon the exercise of the Class C 
Warrants became automatically convertible into 12 million shares of 
Common Stock following exercise of the Class C Warrants and the 
transfer of the Series B Preferred Stock issued by Bancorp to third 
parties in a ``widely-dispersed'' offering.
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    \28\ Bancorp's Form 10-K Report states, on page 35, that for the 
fiscal year ending December 31, 2009, no conversion of Series B 
Preferred Stock can occur until the condition of a ``widely-
dispersed'' offering of such stock has occurred, due to regulatory 
reasons.
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    Bancorp contributed the $139.2 million of proceeds from the Capital 
Raise to the Bank, thereby improving the Bank's operating flexibility. 
In addition, the regulatory capital ratios of the Bank improved 
significantly as a result of the Capital Raise.

The Offering

    8. Following the Capital Raise, Bancorp embarked on an effort to 
raise $10 million in additional capital through the Offering.\29\ The 
Offering commenced on January 29, 2010 and it expired on March 1, 2010 
at 5 p.m. PST (the Offering Expiration Date). The shares of Common 
Stock issued in connection with the Offering were listed on the NASDAQ 
Global Select Market.
---------------------------------------------------------------------------

    \29\ Bancorp apprised the FDIC and DFCS of the Offering pursuant 
to the Consent Order.
---------------------------------------------------------------------------

    In the Offering, Bancorp distributed, at no charge, the Rights to 
the Shareholders of record on January 19, 2010 (the Record Date). The 
Rights entitled the Shareholders to purchase up to 5,000,000 shares of 
Common Stock for a subscription price (the Subscription Price) of $2.00 
per share. Each Shareholder received .31787 Rights for each share of 
Common Stock they owned on the Record Date. The Rights were allocated 
in whole numbers

[[Page 61955]]

only and were rounded down to the nearest whole number.
    9. The Rights could not be sold, transferred or assigned, and they 
were not listed for trading on the NASDAQ or any other exchange or 
over-the-counter market. Bancorp represents that the Rights were 
nontransferable to allow only legacy Shareholders the opportunity to 
purchase additional shares of Common Stock to help offset the share 
dilution such shareholders had incurred when the Preferred Stock was 
acquired by the outside investors, as discussed above in Representation 
7. Further, Bancorp states that the use of transferable Rights would 
have allowed persons other than legacy Shareholders to acquire Common 
Stock at the below market price; whereas, the Offering was intended to 
benefit legacy Shareholders. Any Rights that were not exercised by the 
Shareholders expired.
    As noted above, each Right entitled a Shareholder an opportunity to 
purchase one share of Common Stock at the Subscription Price of $2.00 
per share. The Subscription Price, which was established by the 
Bancorp's Board of Directors (the Board), was equal to the implied per 
share value of the Common Stock that was negotiated by the new 
investors, as discussed above in Representation 7. The Subscription 
Price was not related to Bancorp's book value, results of operations, 
cash flows, financial condition or the predicted future market value of 
the Common Stock after the Offering. In addition, the Board did not 
make any recommendations to the Shareholders regarding whether they 
should exercise their Rights but urged the Shareholders to make 
independent decisions based on their assessment of Bancorp's business 
and the risk factors associated with a rights offering.
    10. The Rights entitled the Shareholders to a basic subscription 
privilege (the Basic Subscription Privilege) and an over-subscription 
privilege (the Over-Subscription Privilege). The Basic Subscription 
Privilege entitled the Shareholders to purchase one share of Common 
Stock at the Subscription Price. The Over-Subscription Privilege 
entitled Shareholders to purchase as many additional shares of Common 
Stock available in the Offering as they wanted at the Subscription 
Price. Shareholders were required to exercise their Basic Subscription 
Privilege in full before they could exercise their Over-Subscription 
Privilege. Additionally, Shareholders were required to exercise their 
Over-Subscription Privilege at the same time they exercised their Basic 
Subscription Privilege. However, Bancorp reserved the right to reject 
in whole or in part any Over-Subscription requests, regardless of the 
availability of shares of Common Stock.\30\ Bancorp represents that no 
Shareholders who exercised their Basic Subscription Privileges, 
including Plan Shareholders, had their Over-Subscription requests 
rejected either in whole or in part.
---------------------------------------------------------------------------

    \30\ Bancorp had reserved the rejection right, which is 
customary in a rights offering by a banking institution, to avoid 
any shareholder from acquiring an ownership interest in Bancorp that 
would either jeopardize Bancorp's ability to claim certain tax 
advantages, such as net operating losses, or require Bancorp to 
first obtain approval from federal or state banking authorities.
---------------------------------------------------------------------------

    If the Shareholders collectively exercised their Over-Subscription 
Privileges in excess of the 5,000,000 shares authorized by Bancorp in 
the Offering, Bancorp was required to fulfill first all Basic 
Subscription Privileges. Then, any remaining shares of Common Stock 
were to be sold pro rata among the Over-Subscription Shareholders based 
on the number of shares for which the over-subscribing Shareholders had 
subscribed under their Basic Subscription Privileges.

Request for Exemptive Relief and Rationale

    11. Bancorp represents that the Rights satisfy the definition of an 
``employer security,'' which under section 407(d)(1) of the Act is 
defined as ``a security issued by an employer of employees covered by 
the plan, or by an affiliate of such employer,'' However, Bancorp 
states that the Rights do not satisfy the definition of a ``qualifying 
employer security,'' as set forth in section 407(d)(5) of the Act, 
which defines the term as an employer security which is stock, a 
marketable obligation, or an interest in a publicly-traded partnership 
(provided that such partnership is an existing partnership as defined 
in the Code). Under section 407(a)(1) of the Act, a plan may not 
acquire or hold any ``employer security'' which is not a ``qualifying 
employer security.'' Moreover, section 406(a)(1)(E) of the Act 
prohibits the acquisition, on behalf of a plan, of any ``employer 
security in violation of section 407(a) of the Act. Finally, section 
406(a)(2) of the Act prohibits a fiduciary who has authority or 
discretion to control or manage the assets of a plan to permit the plan 
to hold any ``employer security'' that violates section 407(a) of the 
Act. Because the Plan's acquisition and holding of the Rights would 
violate the Act,\31\ Bancorp requests an administrative exemption from 
the Department. If granted, the exemption would be effective on the 
Commencement Date.
---------------------------------------------------------------------------

    \31\ Other provisions of the Act that are implicated by the 
transactions include section 406(a)(1)(A) of the Act and the 
fiduciary self-dealing and conflict of interest provisions section 
406(b)(1) and (b)(2) of the Act. In relevant part, section 
406(a)(1)(A) of the Act provides that a fiduciary with respect to a 
plan shall not cause the plan to engage in a transaction if the 
fiduciary knows or should know that the transaction is a prohibited 
sale or exchange of any property between a plan and a party in 
interest. Section 406(b)(1) of the Act prohibits a fiduciary from 
dealing with the assets of a plan in his own interest of or for his 
own account. Section 406(b)(2) of the Act prohibits a fiduciary with 
respect to a plan from acting in any transaction involving the plan 
on behalf of a party, or represent a party, whose interests are 
adverse to the interests of the plan or its participants and 
beneficiaries.
---------------------------------------------------------------------------

The Rights Disclosures

    12. On February 3, 2010, Bancorp posted a ``Rights Offering 
Notice'' on its intranet for its employees. On February 4, 2010, 
Bancorp completed mailing a prospectus for the Offering. Plan 
Shareholders also received special instructions entitled ``Special 
Instructions for Participants in our 401(k) Plan--What You Need to Know 
about the Bancorp Stock Rights Offering and Your 401(k) Account'' 
(Special Instructions). As discussed below, the Special Instructions 
gave Plan Shareholders, as opposed to non-Plan Shareholders, different 
timeframes and payment methods in which to exercise their Rights.

Exercise of Rights

    13. Shareholders were permitted to exercise all, some or none of 
their Rights. An election to exercise a Right was irrevocable once 
made. Bancorp did not charge any fees or sales commissions to issue the 
Rights or to issue shares of Common Stock to those who exercised their 
Rights. However, if Shareholders exercised their Rights through a 
broker or other holder of their shares, the Shareholders were 
responsible for paying any fees that person may have charged. No fees 
or expenses were paid by the Plan.
    14. To exercise their Rights, including their Basic and Over-
Subscription Privileges, non-Plan Shareholders were required to 
complete and submit a Subscription Rights Certificate to Wells Fargo, 
N.A. which acted as the Subscription Agent for the Offering (the 
Subscription Agent). The Subscription Agent collected these payments 
and held them in a segregated bank account until the Offering was 
completed. Once the Offering had been completed, the Subscription Agent 
purchased the new shares of Common Stock in accordance with the terms 
of the Offering. Generally, non-Plan Shareholders had until 5 p.m. PST 
on the Offering Expiration Date (i.e., March 1, 2010) to

[[Page 61956]]

exercise their Rights, but those who held their shares in a brokerage 
account had to comply with the earlier deadline set by their particular 
broker.
    15. To exercise their Rights, Plan Shareholders were required to 
complete and submit a Subscription Rights Certificate and Election Form 
to the Subscription Agent, which was not a party in interest with 
respect to the Plan, by 5 p.m. CST (3 p.m. PST) on February 22, 2010 
(the Participant Expiration Time), six business days before the 
Offering Expiration Date.\32\ From the Commencement Date to the 
Participant Expiration Time, the Subscription Agent was required to 
provide the Trustee with daily reports of the participants who 
submitted forms and the number of Rights they chose to exercise under 
both their Basic and Over-Subscription Privileges.
---------------------------------------------------------------------------

    \32\ Bancorp represents that the extra business days were 
required to provide the Trustee, the Subscription Agent for the 
Offering, the Plan's recordkeeper, the custodian for the Stock Fund 
and the clearing agency for the Offering sufficient time to process 
Plan participants' elections to exercise their Rights, tabulate and 
confirm the results, liquidate the participants' funds, confirm the 
orders and the availability of the funds and remit payment to 
purchase the shares.
---------------------------------------------------------------------------

    In order to exercise their Rights, Plan participants were not 
required to remit any payments to the Subscription Agent. Instead, 
participants were required to have enough money available in their 
Money Market Fund accounts by the Participant Expiration Time to pay 
for their Basic and Over-Subscription Privilege shares (their 
Subscription Prices).\33\ Because participants were not likely to have 
sufficient funds in their Money Market Fund accounts initially, the 
Special Instructions provided detailed instructions about how 
participants could transfer additional funds into the Money Market Fund 
from other Plan investment funds and specified the timeframes in which 
to do so. Participant directions to move funds in the Money Market Fund 
from any other investment funds in the Plan except the Stock Fund had 
to be received by February 17, 2010. Participant instructions to move 
funds from the Stock Fund into the Money Market Fund had to be received 
by February 19, 2010 in order to allow additional time to settle trades 
on the Common Stock.
---------------------------------------------------------------------------

    \33\ Participants had to have sufficient funds to pay for their 
Basic and Over-Subscription Privileges, but they could choose the 
source of such funds from within their individual accounts in the 
Plan. By liquidating only the participants' Money Market Fund 
accounts rather than making a pro rata liquidation from each of the 
Plan investment funds in which participants were invested, Bancorp 
explains that the Plan allowed participants to choose which of their 
Plan investment funds they wanted to liquidate to pay for their 
shares of Common Stock. Thus, participants were not forced to use 
money from other investment funds within the Plan which they wished 
to keep invested at their then current levels.
---------------------------------------------------------------------------

    16. As soon as practicable after the Participant Expiration Time, 
the Trustee froze the Money Market Fund accounts of the participants 
exercising Rights\34\ and liquidated funds sufficient to cover their 
Subscription Prices. If a participant did not have enough money, the 
Trustee (as instructed by Bancorp) exercised that participant's Rights 
to the maximum extent possible with the funds available. Once the 
Trustee was finished liquidating funds, it lifted the freeze on the 
Money Market Fund.
---------------------------------------------------------------------------

    \34\ Bancorp states that the reason behind freezing the 
participant's Money Market Fund accounts was to prevent the 
participants from moving money out of such fund after the 
Participant Expiration Time lapsed but before the Trustee could 
liquidate it.
---------------------------------------------------------------------------

    17. To provide the participants with a contemporaneous confirmation 
of the number of shares they had purchased in the Offering while 
working within the restrictions placed by the administration system of 
the Plan's recordkeeper, the Stock Fund was credited with the number of 
shares for which the participants had subscribed and paid, even though 
at the time those shares had not yet been purchased.\35\ The Special 
Instructions explicitly stated that the use of the term ``shares'' only 
indicated a pending trade and that the actual shares they purchased 
would not be officially credited to their accounts until after the 
Offering had closed and the shares had been purchased. For these 
reasons, the Stock Fund was frozen for those participants. The freeze 
was in effect from the time the shares were credited as a pending trade 
until the shares were actually purchased and credited to their 
accounts. Bancorp informed participants that the freeze would last 
until five to ten business days after the Offering Expiration Date.\36\
---------------------------------------------------------------------------

    \35\ According to Bancorp, the original intent was to create a 
special temporary investment fund in the Plan designated as the 
``Rights Offering Subscription,'' in order to show a 
counterbalancing asset for the money that was liquidated from the 
participants' Money Market Fund. However, the administrative system 
of the Plan's recordkeeper was unable to create this special 
account. Consequently, the only available option was to show the 
subscription rights as actual shares within the Stock Fund, pending 
the actual purchase of those shares.
    \36\ Bancorp represents that the five to ten business days 
allowed sufficient processing time for the Subscription Agent to 
determine the number of shares acquired in the over-subscription, 
for the shares to be issued, and for the crediting of the shares to 
the participants' accounts.
---------------------------------------------------------------------------

    18. Because the Participant Expiration Time was set six business 
days before the Offering Expiration Date, Bancorp explains that 
participants would possibly have been at a slight disadvantage relative 
to non-Plan Shareholders who had a few additional days to observe the 
trading price of the Common Stock and determine whether they wanted to 
participate in the Offering.\37\ Therefore, the Trustee was instructed 
to note the public trading price of the Common Stock on Friday, 
February 26, 2010 (one business day before the Offering Expiration 
Date). If, on that date, the Common Stock last traded at above $2.00 
per share, the Trustee was to exercise the participant's Rights 
pursuant to the terms of the Offering as described above. If, however, 
the Common Stock traded at $2.00 per share or lower, the Trustee was to 
re-deposit all money into the appropriate participant's Money Market 
Fund account and delete the pending trade from the participant's 
account in the Stock Fund.
---------------------------------------------------------------------------

    \37\ According to Bancorp, most of the non-Plan Shareholders 
held their shares in brokerage accounts. This meant that they had to 
send their subscription elections to their brokers, who would then 
patch those elections for their customers with the election cutoff 
date set by their brokers, which was typically several business days 
before the Offering Expiration Date.
---------------------------------------------------------------------------

    If a Plan Shareholder instructed the Trustee to exercise such 
participant's Rights, the Trustee was required to remit the 
participant's money to the designated clearing agency for the Offering, 
Depository Trust & Clearing Corporation (DTC). DTC would then purchase 
the Common Stock from Bancorp, and the Trustee would credit such 
participant's account in the Stock Fund with the corresponding shares. 
In the event participants over-subscribed to more shares than were 
available under the Offering, the money liquidated from the 
participant's Money Market Fund account to buy those shares was re-
deposited into the appropriate account.
    19. As of the Commencement Date, 339 Plan participants were 
eligible to exercise a minimum of one Right. However, only 70 or 20.1 
percent of Plan Shareholders exercised their Rights. In addition, the 
Common Stock never closed below $2.00 per share during the entire 
Subscription Period.\38\ With respect to Plan Shareholders, the closing 
price of the Common Stock on February 26, 2010 was $2.63 per share and 
was $2.59 per share on the Expiration Closing Date. Accordingly, the 
Trustee exercised the Rights for all such Plan Shareholders at the same 
time.
---------------------------------------------------------------------------

    \38\ During this period, shares of Common Stock closed as low as 
$2.47 per share on February 17, 2010 and as high as $2.80 per share 
on February 3, 2010.

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

[[Page 61957]]

    20. Bancorp represents that the acquisition and holding of the 
Rights by the Plan was administratively feasible, in that the Offering 
was a one-time transaction, and all shareholders of Common Stock, 
including the Plan shareholders, were treated in the same manner with 
respect to the acquisition and holding of the Rights. With regard to 
the fact that Plan shareholders had less time to decide whether to 
exercise their Rights, Bancorp represents that the various service 
providers involved in the Offering, rather than Bancorp, required the 
additional time. Additionally, Bancorp explains that the Offering 
included specific protections instructing the Trustee not to exercise 
the Rights of Plan Shareholders if the Common Stock fell below the 
Subscription Price. Further, Bancorp states that the proposed exemption 
would be in the best interests of the Plan and its participants and 
beneficiaries because Plan Shareholders that exercised their Rights 
avoided the dilution of their interests in Bancorp and increased the 
value of their individual accounts.

Summary

    21. In summary, Bancorp represents that the transactions satisfied 
the statutory requirements for an exemption under section 408(a) of the 
Act because:
    (a) The Plan's receipt of the Rights occurred in connection with 
the Offering and was made available by Bancorp on the same terms to all 
shareholders of the Common Stock;
    (b) The acquisition of the Rights by the Plan resulted from an 
independent act of Bancorp as a corporate entity, and all Shareholders 
of the Rights, including the Plan, were treated in the same manner with 
respect to such acquisition;
    (c) All Shareholders of the Common Stock, including the Plan, 
received the same proportionate number of Rights based on the number of 
shares of the Common Stock held by such Shareholders;
    (d) All decisions regarding the Rights held by the Plan were made 
by the individual Plan participants whose accounts in the Plan received 
the Rights, in accordance with the provisions under the Plan for 
individually-directed investment of such accounts; and
    (e) The Plan did not pay any fees or commissions in connection with 
the acquisition or holding of the Rights.

FOR FURTHER INFORMATION CONTACT: Mr. Anh-Viet Ly of the Department at 
(202) 693-8648. (This is not a toll-free number.)

General Information

    The attention of interested persons is directed to the following:
    (1) The fact that a transaction is the subject of an exemption 
under section 408(a) of the Act and/or section 4975(c)(2) of the Code 
does not relieve a fiduciary or other party in interest or disqualified 
person from certain other provisions of the Act and/or the Code, 
including any prohibited transaction provisions to which the exemption 
does not apply and the general fiduciary responsibility provisions of 
section 404 of the Act, which, among other things, require a fiduciary 
to discharge his duties respecting the plan solely in the interest of 
the participants and beneficiaries of the plan and in a prudent fashion 
in accordance with section 404(a)(1)(b) of the Act; nor does it affect 
the requirement of section 401(a) of the Code that the plan must 
operate for the exclusive benefit of the employees of the employer 
maintaining the plan and their beneficiaries;
    (2) Before an exemption may be granted under section 408(a) of the 
Act and/or section 4975(c)(2) of the Code, the Department must find 
that the exemption is administratively feasible, in the interests of 
the plan and of its participants and beneficiaries, and protective of 
the rights of participants and beneficiaries of the plan;
    (3) The proposed exemptions, if granted, will be supplemental to, 
and not in derogation of, any other provisions of the Act and/or the 
Code, including statutory or administrative exemptions and transitional 
rules. Furthermore, the fact that a transaction is subject to an 
administrative or statutory exemption is not dispositive of whether the 
transaction is in fact a prohibited transaction; and
    (4) The proposed exemptions, if granted, will be subject to the 
express condition that the material facts and representations contained 
in each application are true and complete, and that each application 
accurately describes all material terms of the transaction which is the 
subject of the exemption.

    Signed at Washington, DC, this 30th day of September, 2010.
Ivan Strasfeld,
 Director of Exemption Determinations, Employee Benefits Security 
Administration, U.S. Department of Labor.
[FR Doc. 2010-24892 Filed 10-5-10; 8:45 am]
BILLING CODE 4510-29-P