Prohibited Transaction Exemptions and Grant of Individual Exemptions involving: 2008-15, Popular, Inc., Banco Popular de Puerto Rico, and Popular Financial Holdings, Inc. (collectively, the Applicants), D-11396; and 2008-16, BlackRock, Inc. (BlackRock, and The PNC Financial Services Group, Inc. (PNC) (collectively, the Applicants), D-11453, 78837-78846 [E8-30512]

Agencies

• Employee Benefits Security Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 73, Number 247 (Tuesday, December 23, 2008)]
[Notices]
[Pages 78837-78846]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-30512]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Employee Benefits Security Administration


Prohibited Transaction Exemptions and Grant of Individual 
Exemptions involving: 2008-15, Popular, Inc., Banco Popular de Puerto 
Rico, and Popular Financial Holdings, Inc. (collectively, the 
Applicants), D-11396; and 2008-16, BlackRock, Inc. (BlackRock, and The 
PNC Financial Services Group, Inc. (PNC) (collectively, the 
Applicants), D-11453

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Grant of Individual Exemptions.

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

SUMMARY: This document contains exemptions issued by the Department of 
Labor (the Department) from certain of the prohibited transaction 
restrictions of the Employee Retirement Income Security Act of 1974 
(ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code).
    A notice was published in the Federal Register of the pendency 
before the Department of a proposal to grant such exemption. The notice 
set forth a summary of facts and representations contained in the 
application for exemption and referred interested persons to the 
application for a complete statement of the facts and representations. 
The application has been available for public inspection at the 
Department in Washington, DC. The notice also invited interested 
persons to submit comments on the requested exemption to the 
Department. In addition the notice stated that any interested person 
might submit a written request that a public hearing be held (where 
appropriate). The applicant has represented that it has complied with 
the requirements of the notification to interested persons. No requests 
for a hearing were received by the Department. Public comments were 
received by the Department as described in the granted exemption.
    The notice of proposed exemption was issued and the exemption is 
being granted solely by the Department because, 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 proposed to the Secretary of Labor.

Statutory Findings

    In accordance with section 408(a) of the Act and/or section 
4975(c)(2) of the Code and the procedures set forth in 29 CFR Part 
2570, Subpart B (55 FR 32836, 32847, August 10, 1990) and based upon 
the entire record, the Department makes the following findings:
    (a) The exemption is administratively feasible;
    (b) The exemption is in the interests of the plan and its 
participants and beneficiaries; and
    (c) The exemption is protective of the rights of the participants 
and beneficiaries of the plan.

Popular, Inc., Banco Popular de Puerto Rico, and Popular Financial 
Holdings, Inc. (collectively, the Applicants) Located in the 
Commonwealth of Puerto Rico.

[Prohibited Transaction No. 2008-15; Exemption Application No: D-11396]

Exemption

Section I: Transactions

    (a) The restrictions of sections 406(a), 406(b)(1), 406(b)(2), and 
407(a) of the Act shall not apply, effective November 23, 2005, to:
    (1) The acquisition of stock rights (the Rights) by certain plans, 
described, below, in Section I(a)(1)(A) through (D) of this exemption, 
in connection with an offering of such Rights (the Offering) by 
Popular, Inc. (Popular), a party in interest with respect to such 
plans:
    (A) Popular, Inc. Retirement Savings Plan for Puerto Rico 
Subsidiaries (the Popular PR Plan);
    (B) Banco Popular de Puerto Rico Savings and Stock Plan (the BPPR 
Savings Plan),
    (C) Popular, Inc. U.S.A. Profit Sharing/401(k) Plan (the Popular 
USA Plan),
    (D) Popular Financial Holdings, Inc. Savings and Retirement Plan 
(the PFH Savings Plan) \1\, and
---------------------------------------------------------------------------

    \1\ The BPPR Savings Plan, the Popular PR Plan, the Popular USA 
Plan, and the PFH Savings Plan are referred to, herein, 
collectively, as the Participant Directed Plans.
---------------------------------------------------------------------------

    (2) The holding of the Rights by the certain plans, described, 
above, in Section I(a)(1)(A) through (D) of this exemption, until the 
expiration of such Rights; provided that the conditions in Section II 
of this exemption, as set forth, below, are satisfied and
    (b) The sanctions resulting from the application of section 4975 of 
the Internal Revenue Code of 1986 (the U.S. Code), by reason of section 
4975(c)(1)(A) through (E) shall not apply, effective November 23, 2005, 
to the acquisition of the Rights by certain plans, described, above, in 
Section I(a)(1)(C), and Section I(a)(1)(D) of this exemption; \2\ 
provided

[[Page 78838]]

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

    \2\ The Applicants represent that, because the fiduciaries for 
the BPPR Savings Plan, and the Popular PR Plan have not made an 
election under section 1022(i)(2) of the Act, whereby such plans 
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, that jurisdiction under Title II of the Act does not 
apply. Accordingly, the Department is not providing any relief for 
the prohibitions, as set forth in Title II of the Act, for the 
acquisition of the Rights by these plans.
---------------------------------------------------------------------------

Section II: Conditions

    The relief provided in this 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 exemption.
    a. The receipt by each of the Participant Directed Plans of the 
Rights occurred in connection with the Offering made available by 
Popular on the same terms to all shareholders of the common stock of 
Popular (the Popular Stock);
    b. The acquisition of the Rights by the Participant Directed Plans 
resulted from an independent act of Popular as a corporate entity, and 
all holders of the Rights, including the Participant Directed Plans, 
were treated in the same manner with respect to the acquisition of the 
Rights;
    c. All shareholders of the Popular Stock, including the Participant 
Directed Plans received the same proportionate number of Rights based 
on the number of shares of Popular Stock held by such Participant 
Directed Plans;
    d. The acquisition of the Rights by the Participant Directed Plans 
was made pursuant to provisions of each such plan for individually-
directed investment of participant accounts (the Account(s));
    e. All decisions regarding the Rights made by the Participant 
Directed Plans were made in accordance with the provisions of each such 
plan for individually-directed investment of participant Accounts, by 
the individual participants whose Accounts in each such plan received 
the Rights in connection with the Offering; and
    f. Popular must refund to the Banco Popular de Puerto Rico Profit 
Sharing Plan and the Banco Popular de Puerto Rico Profit Restoration 
Plan (collectively, the P/S Plans), and to the Accounts of each of the 
participants in the Participant Directed Plans, the pro rata portion of 
a dealer manager/solicitation fee (the Fee) in the aggregate amount of 
$81,261.34. This Fee was received by Popular Securities, Inc., the co-
dealer/manager of the Rights Offering, as a result of the exercise of 
the Rights by each such plan and by each such Account, and the payment 
by each such plan and each such Account of the subscription price of 
$21.00 per share for the Popular Stock. Furthermore, Popular must 
refund to each such plan and to each such Account an additional amount 
attributable to lost earnings experienced by each such plan and each 
such Account on the pro rata portion of such Fee, and interest on such 
lost earnings, for the period from December 19, 2005, to the date when 
Popular has refunded the pro rata portion of the Fee attributable to 
each such plan and each such Account, the lost earnings amount, plus 
interest on such lost earnings. For the purpose of calculating the lost 
earnings on the pro rata portion of the Fee attributable to each such 
plan and each such Account, plus interest, on such lost earnings, 
Popular will use the Online Calculator for the Voluntary Fiduciary 
Correction Program \3\ that appears on the Web site of the Employee 
Benefits Security Administration.
---------------------------------------------------------------------------

    \3\ 70 FR 17516, April 6, 2005.
---------------------------------------------------------------------------

    Effective Date: This exemption is effective as of November 23, 
2005, the date of the announcement of the Offering.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption refer to 
the Notice of Exemption published on September 3, 2008, at 73 FR 51516.

FOR FURTHER INFORMATION CONTACT: Angelena C. Le Blanc of the 
Department, telephone (202) 693-8540 (This is not a toll-free number.)

BlackRock, Inc. (BlackRock), and the PNC Financial Services Group, Inc. 
(PNC) (Collectively, the Applicants) Located in New York, New York

[Prohibited Transaction No. 2008-16; Exemption Application No: D-11453]

Exemption

Section I--Covered Transactions

    The restrictions of section 406 of the Act and the sanctions 
resulting from the application of section 4975 of the Code, by reason 
of section 4975(c)(1)(A) through (F) of the Code, shall not apply to 
the purchase of certain securities (the Securities), as defined, below 
in Section IV(k), by an Asset Manager, as defined, below, in Section 
IV(f), from any person other than the Asset Manager or PNC/BlackRock 
Related Entities, as defined, below, in Section IV(c), during the 
existence of an underwriting or selling syndicate with respect to such 
Securities, where the Asset Manager purchases such Securities, as a 
fiduciary on behalf of an employee benefit plan or employee benefit 
plans (Client Plan(s)), as defined, below, in Section IV(h); or on 
behalf of Client Plans, and/or In-House Plans, as defined, below, in 
Section IV(o), which are invested in a pooled fund or in pooled funds 
(Pooled Fund(s)), as defined, below, in Section IV(i) under the 
following circumstances:
    (a) Where a PNC/BlackRock Related Broker-Dealer, as defined, below, 
in Section IV(b), is a manager or member of such syndicate (an 
affiliated underwriter transaction (AUT)); or
    (b) Where a PNC/BlackRock Related Broker-Dealer, as defined, below, 
in Section IV(b), is a manager or member of such syndicate and an 
Affiliated Servicer, as defined below in Section IV(p), serves as 
servicer of a trust that issued the Securities (whether or not debt 
securities) ( an affiliated servicer transaction (AUT and AST); or
    (c) Where an Affiliated Servicer serves as servicer of a trust that 
issued the Securities (whether or not debt securities) (AST).
    This exemption applies to transactions, as described, above, in 
Section I(a) and (b) of this exemption only if the applicable 
conditions as set forth, below, in Section II, are satisfied. This 
exemption applies to the transaction, as described, above, in Section 
I(c) of this exemption, only if all of the conditions, as set forth, 
below, in Section III are satisfied.

Section II--Conditions for Transactions Described in Section I(a) and 
(b).

    The exemption is conditioned upon satisfaction of the following 
requirements:(a)(1) The Securities to be purchased are either--
    (i) Part of an issue registered under the Securities Act of 1933 
(the 1933 Act) (15 U.S.C. 77a et seq.). If the Securities to be 
purchased are part of an issue that is exempt from such registration 
requirement, such Securities:
    (A) Are issued or guaranteed by the United States or by any person 
controlled or supervised by and acting as an instrumentality of the 
United States pursuant to authority granted by the Congress of the 
United States, (B) Are issued by a bank, (C) Are exempt from such 
registration requirement pursuant to a federal statute other than the 
1933 Act, or
    (D) Are the subject of a distribution and are of a class which is 
required to be registered under section 12 of the Securities Exchange 
Act of 1934 (the 1934 Act) (15 U.S.C. 781), and are issued by an issuer 
that has been subject

[[Page 78839]]

to the reporting requirements of section 13 of the 1934 Act (15 U.S.C. 
78m) for a period of at least ninety (90) days immediately preceding 
the sale of such Securities and that has filed all reports required to 
be filed thereunder with the Securities and Exchange Commission (SEC) 
during the preceding twelve (12) months; or
    (ii) Part of an issue that is an Eligible Rule 144A Offering, as 
defined in SEC Rule 10f-3 (17 CFR 270.10f 3(a)(4)). Where the Eligible 
Rule 144A Offering of the Securities is of equity securities, the 
offering syndicate shall obtain a legal opinion regarding the adequacy 
of the disclosure in the offering memorandum;
    (2) The Securities to be purchased are purchased prior to the end 
of the first day on which any sales are made, pursuant to that 
offering, at a price that is not more than the price paid by each other 
purchaser of the Securities in that offering or in any concurrent 
offering of the Securities, except that--
    (i) If such Securities are offered for subscription upon exercise 
of rights, they may be purchased on or before the fourth day preceding 
the day on which the rights offering terminates; or
    (ii) If such Securities are debt securities, they may be purchased 
at a price that is not more than the price paid by each other purchaser 
of the Securities in that offering or in any concurrent offering of the 
Securities and may be purchased on a day subsequent to the end of the 
first day on which any sales are made, pursuant to that offering, 
provided that the interest rates, as of the date of such purchase, on 
comparable debt securities offered to the public subsequent to the end 
of the first day on which any sales are made and prior to the purchase 
date are less than the interest rate of the debt Securities being 
purchased; and
    (3) The Securities to be purchased are offered pursuant to an 
underwriting or selling agreement under which the members of the 
syndicate are committed to purchase all of the Securities being 
offered, except if--
    (i) Such Securities are purchased by others pursuant to a rights 
offering; or
    (ii) Such Securities are offered pursuant to an over-allotment 
option.
    (b) The issuer of the Securities to be purchased pursuant to this 
exemption must have been in continuous operation for not less than 
three (3) years, including the operation of any predecessors, unless 
the Securities to be purchased--
    (1) Are non-convertible debt securities rated in one of the four 
highest rating categories by Standard & Poor's Rating Services, Moody's 
Investors Service, Inc., Fitch Ratings, Inc., DBRS Limited, DBRS, Inc., 
or any successors thereto (collectively, the Rating Organizations); 
provided that none of the Rating Organizations rates such securities in 
a category lower than the fourth highest rating category; or
    (2) Are debt securities issued or fully guaranteed by the United 
States or by any person controlled or supervised by and acting as an 
instrumentality of the United States pursuant to authority granted by 
the Congress of the United States; or
    (3) Are debt securities which are fully guaranteed by a person (the 
Guarantor) that has been in continuous operation for not less than 
three (3) years, including the operation of any predecessors, provided 
that such Guarantor has issued other securities registered under the 
1933 Act; or if such Guarantor has issued other securities which are 
exempt from such registration requirement, such Guarantor has been in 
continuous operation for not less than three (3) years, including the 
operation of any predecessors, and such Guarantor:
    (A) Is a bank, or
    (B) Is an issuer of securities which are exempt from such 
registration requirement, pursuant to a Federal statute other than the 
1933 Act; or
    (C) Is an issuer of securities that are the subject of a 
distribution and are of a class which is required to be registered 
under section 12 of the 1934 Act (15 U.S.C. 781), and are issued by an 
issuer that has been subject to the reporting requirements of section 
13 of the 1934 Act (15 U.S.C. 78m) for a period of at least ninety (90) 
days immediately preceding the sale of such securities and that has 
filed all reports required to be filed hereunder with the SEC during 
the preceding twelve (12) months.
    (c) The aggregate amount of Securities of an issue purchased, 
pursuant to this exemption, by the Asset Manager with: (i) The assets 
of all Client Plans; and (ii) The assets, calculated on a pro rata 
basis, of all Client Plans and In-House Plans investing in Pooled Funds 
managed by the Asset Manager; and (iii) the assets of plans to which 
the Asset Manager renders investment advice within the meaning of 29 
CFR 2510.3 21(c) does not exceed:
    (1) 10 percent (10%) of the total amount of the Securities being 
offered in an issue, if such Securities are equity securities;
    (2) 35 percent (35%) of the total amount of the Securities being 
offered in an issue, if such Securities are debt securities rated in 
one of the four highest rating categories by at least one of the Rating 
Organizations; provided that none of the Rating Organizations rates 
such Securities in a category lower than the fourth highest rating 
category; or
    (3) 25 percent (25%) of the total amount of the Securities being 
offered in an issue, if such Securities are debt securities rated in 
the fifth or sixth highest rating categories by at least one of the 
Rating Organizations; provided that none of the Rating Organizations 
rates such Securities in a category lower than the sixth highest rating 
category; and
    (4) The assets of any single Client Plan (and the assets of any 
Client Plans and any In-House Plans investing in Pooled Funds) may not 
be used to purchase any Securities being offered, if such Securities 
are debt securities rated lower than the sixth highest rating category 
by any of the Rating Organizations;
    (5) Notwithstanding the percentage of Securities of an issue 
permitted to be acquired, as set forth in Section II(c)(1), (2), and 
(3), above, of this exemption, the amount of Securities in any issue 
(whether equity or debt securities) purchased, pursuant to this 
exemption, by the Asset Manager on behalf of any single Client Plan, 
either individually or through investment, calculated on a pro rata 
basis, in a Pooled Fund may not exceed three percent (3%) of the total 
amount of such Securities being offered in such issue, and;
    (6) If purchased in an Eligible Rule 144A Offering, the total 
amount of the Securities being offered for purposes of determining the 
percentages, described, above, in Section II(c)(1)-(3) and (5), is the 
total of:
    (i) The principal amount of the offering of such class of 
Securities sold by underwriters or members of the selling syndicate to 
``qualified institutional buyers'' (QIBs), as defined in SEC Rule 144A 
(17 CFR 230.144A(a)(1)); plus
    (ii) The principal amount of the offering of such class of 
Securities in any concurrent public offering.
    (d) The aggregate amount to be paid by any single Client Plan in 
purchasing any Securities which are the subject of this exemption, 
including any amounts paid by any Client Plan or In-House Plan in 
purchasing such Securities through a Pooled Fund, calculated on a pro-
rata basis, does not exceed three percent (3%) of the fair market value 
of the net assets of such Client Plan or In-House Plan, as of the last 
day of the most recent fiscal quarter of such Client Plan or In-House 
Plan prior to such transaction.
    (e) The covered transactions are not part of an agreement, 
arrangement, or

[[Page 78840]]

understanding designed to benefit any PNC/BlackRock Related Entity.
    (f) If the transaction is an AUT, no PNC/BlackRock Related Broker-
Dealer receives, either directly, indirectly, or through designation, 
any selling concession, or other compensation or consideration that is 
based upon the amount of Securities purchased by any single Client 
Plan, or that is based on the amount of Securities purchased by Client 
Plans or In-House Plans through Pooled Funds, pursuant to this 
exemption. In this regard, a PNC/BlackRock Related Broker-Dealer may 
not receive, either directly or indirectly, any compensation or 
consideration that is attributable to the fixed designations generated 
by purchases of the Securities by the Asset Manager on behalf of any 
single Client Plan or any Client Plan or In-House Plan in Pooled Funds.
    (g)(1) If the transaction is an AUT, the amount a PNC/BlackRock 
Related Broker Dealer receives in management, underwriting, or other 
compensation or consideration is not increased through an agreement, 
arrangement, or understanding for the purpose of compensating such PNC/
BlackRock Related Broker-Dealer for foregoing any selling concessions 
for those Securities sold pursuant to this exemption. Except as 
described above, nothing in this Section II(g)(1) shall be construed as 
precluding a PNC/BlackRock Related Broker-Dealer from receiving 
management fees for serving as manager of an underwriting or selling 
syndicate, underwriting fees for assuming the responsibilities of an 
underwriter in the underwriting or selling syndicate, or other 
compensation or consideration that is not based upon the amount of 
Securities purchased by the Asset Manager on behalf of any single 
Client Plan, or on behalf of any Client Plan or In-House Plan 
participating in Pooled Funds, pursuant to this exemption; and
    (2) Each PNC/BlackRock Related Broker-Dealer shall provide to the 
Asset Manager a written certification, signed by an officer of such 
PNC/BlackRock Related Broker-Dealer, stating the amount that each such 
PNC/BlackRock Related Broker-Dealer received in compensation or 
consideration during the past quarter, in connection with any offerings 
covered by this exemption, was not adjusted in a manner inconsistent 
with Section II(e), (f), or (g) of this exemption.
    (h) The covered transactions are performed under a written 
authorization executed in advance by an independent fiduciary of each 
single Client Plan (the Independent Fiduciary), as defined below, in 
Section IV(j).
    (i) Prior to the execution by an Independent Fiduciary of a single 
Client Plan of the written authorization described above, in Section 
II(h), the following information and materials (which may be provided 
electronically) must be provided by the Asset Manager to such 
Independent Fiduciary:
    (1) A copy of the Notice of Proposed Exemption (the Notice) and a 
copy of the final exemption (the Grant) as published in the Federal 
Register, provided that the Notice and the Grant are supplied 
simultaneously; and
    (2) Any other reasonably available information regarding the 
covered transactions that such Independent Fiduciary requests the Asset 
Manager to provide.
    (j) Subsequent to the initial authorization by an Independent 
Fiduciary of a single Client Plan permitting the Asset Manager to 
engage in the covered transactions on behalf of such single Client 
Plan, the Asset Manager will continue to be subject to the requirement 
to provide within a reasonable period of time any reasonably available 
information regarding the covered transactions that the Independent 
Fiduciary requests the Asset Manager to provide.
    (k)(1) In the case of an existing employee benefit plan investor 
(or existing In-House Plan investor, as the case may be) in a Pooled 
Fund, such Pooled Fund may not engage in any covered transactions 
pursuant to this exemption, unless the Asset Manager provides the 
written information, as described, below, and within the time period 
described, below, in this Section II(k)(2), to the Independent 
Fiduciary of each such plan participating in such Pooled Fund (and to 
the fiduciary of each such In-House Plan participating in such Pooled 
Fund).
    (2) The following information and materials, (which may be provided 
electronically) shall be provided by the Asset Manager not less than 45 
days prior to such Asset Manager engaging in the covered transactions 
on behalf of a Pooled Fund, pursuant to this exemption; and provided 
further that the information described, below, in this Section 
II(k)(2)(i) and (iii) is supplied simultaneously:
    (i) A notice of the intent of such Pooled Fund to purchase 
Securities pursuant to this exemption, a copy of this Notice, and a 
copy of the Grant, as published in the Federal Register, provided that 
the Notice and the Grant are supplied simultaneously;
    (ii) Any other reasonably available information regarding the 
covered transactions that the Independent Fiduciary of a plan (or 
fiduciary of an In-House Plan) participating in a Pooled Fund requests 
the Asset Manager to provide; and
    (iii) A termination form expressly providing an election for the 
Independent Fiduciary of a plan (or fiduciary of an In-House Plan) 
participating in a Pooled Fund to terminate such plan's (or In-House 
Plan's) investment in such Pooled Fund without penalty to such plan (or 
In-House Plan). Such form shall include instructions specifying how to 
use the form. Specifically, the instructions will explain that such 
plan (or such In-House Plan) has an opportunity to withdraw its assets 
from a Pooled Fund for a period of no more than 30 days after such 
plan's (or such In-House Plan's) receipt of the initial notice of 
intent, described above, in Section II(k)(2)(i), and that the failure 
of the Independent Fiduciary of such plan (or fiduciary of such In-
House Plan) to return the termination form to the Asset Manager in the 
case of a plan (or In-House Plan) participating in a Pooled Fund by the 
specified date shall be deemed to be an approval by such plan (or such 
In-House Plan) of its participation in the covered transactions as an 
investor in such Pooled Fund.
    Further, the instructions will identify the Asset Manager and the 
PNC/BlackRock Related Broker-Dealer and/or the Affiliated Servicer and 
will provide the address of the Asset Manager. The instructions will 
state that this exemption may be unavailable, unless the fiduciary of 
each plan participating in the covered transactions as an investor in a 
Pooled Fund is, in fact, independent of the PNC/BlackRock Related 
Entities. The instructions will also state that the fiduciary of each 
such plan must advise the Asset Manager, in writing, if it is not an 
``Independent Fiduciary,'' as that term is defined below in Section 
IV(j).
    For purposes of this Section II(k), the requirement that the 
fiduciary responsible for the decision to authorize the transactions 
described above, in Section I of this exemption for each plan be 
independent of the PNC/BlackRock Related Entities shall not apply in 
the case of an In-House Plan.
    (l)(1) In the case of each plan (and in the case of each In-House 
Plan) whose assets are proposed to be invested in a Pooled Fund after 
such Pooled Fund has satisfied the conditions set forth in this 
exemption to engage in the covered transactions, the investment by such 
plan (or by such In-House Plan) in the Pooled Fund is subject to the 
prior written authorization of an Independent Fiduciary representing 
such plan (or the prior written authorization by the

[[Page 78841]]

fiduciary of such In-House Plan, as the case may be), following the 
receipt by such Independent Fiduciary of such plan (or by the fiduciary 
of such In-House Plan, as the case may be) of the written information 
described above, in Section II(k)(2)(i) and (ii); provided that the 
Notice and the Grant, described above, in Section II(k)(2)(i) are 
provided simultaneously.
    (2) For purposes of this Section II(l), the requirement that the 
fiduciary responsible for the decision to authorize the transactions 
described above, in Section I of this exemption for each plan proposing 
to invest in a Pooled Fund be independent of the PNC/BlackRock Related 
Entities shall not apply in the case of an In-House Plan.
    (m) Subsequent to the initial authorization by an Independent 
Fiduciary of a plan (or by a fiduciary of an In-House Plan) to invest 
in a Pooled Fund that engages in the covered transactions, the Asset 
Manager will continue to be subject to the requirement to provide 
within a reasonable period of time any reasonably available information 
regarding the covered transactions that the Independent Fiduciary of 
such plan (or the fiduciary of such In-House Plan, as the case may be) 
requests the Asset Manager to provide.
    (n) At least once every three months, and not later than 45 days 
following the period to which such information relates, the Asset 
Manager shall furnish:
    (1) In the case of each single Client Plan that engages in the 
covered transactions, the information described below, in this Section 
II(n)(3)-(7), to the Independent Fiduciary of each such single Client 
Plan.
    (2) In the case of each Pooled Fund in which a Client Plan (or in 
which an In-House Plan) invests, the information described, below, in 
this Section II(n)(3)-(6) and (8), to the Independent Fiduciary of each 
such Client Plan (and to the fiduciary of each such In-House Plan) 
invested in such Pooled Fund.
    (3) A quarterly report (the Quarterly Report) (which may be 
provided electronically) which discloses all the Securities purchased 
pursuant to this exemption during the period to which such report 
relates on behalf of the Client Plan, In-House Plan, or Pooled Fund to 
which such report relates, and which discloses the terms of each of the 
transactions described in such report, including:
    (i) The type of Securities (including the rating of any Securities 
which are debt securities) involved in each transaction;
    (ii) The price at which the Securities were purchased in each 
transaction;
    (iii) The first day on which any sale was made during the offering 
of the Securities;
    (iv) The size of the issue of the Securities involved in each 
transaction;
    (v) The number of Securities purchased by the Asset Manager for the 
Client Plan, In-House Plan, or Pooled Fund to which the transaction 
relates;
    (vi) The identity of the underwriter from whom the Securities were 
purchased for each transaction;
    (vii) The underwriting spread in each transaction (i.e., the 
difference, between the price at which the underwriter purchases the 
securities from the issuer and the price at which the securities are 
sold to the public);
    (viii) The price at which any of the Securities purchased during 
the period to which such report relates were sold;
    (ix) The market value at the end of the period to which such report 
relates of the Securities purchased during such period and not sold; 
and
    (x) In the case of an AST, the basis upon which the Affiliated 
Servicer is compensated;
    (4) The Quarterly Report contains:
    (i) A representation that the Asset Manager has received a written 
certification signed by an officer of each PNC/BlackRock Related 
Broker-Dealer, as described, above, in Section II(g)(2), affirming 
that, as to each AUT covered by this exemption during the past quarter, 
such PNC/BlackRock Related Broker-Dealer acted in compliance with 
Section II(e), (f), and (g) of this exemption. In the case of an AST, a 
representation of the Asset Manager affirming that, as to each AST, the 
transaction was not part of an arrangement or understanding designed to 
benefit the Affiliated Servicer; and
    (ii) a representation that copies of such certifications will be 
provided upon request;
    (5) A disclosure in the Quarterly Report that states that any other 
reasonably available information regarding a covered transaction that 
an Independent Fiduciary (or fiduciary of an In-House Plan) requests 
will be provided, including, but not limited to:
    (i) The date on which the Securities were purchased on behalf of 
the Client Plan (or the In-House Plan) to which the disclosure relates 
(including Securities purchased by Pooled Funds in which such Client 
Plan (or such In-House Plan) invests;
    (ii) The percentage of the offering purchased on behalf of all 
Client Plans (and the pro-rata percentage purchased on behalf of Client 
Plans and In-House Plans investing in Pooled Funds); and
    (iii) The identity of all members of the underwriting syndicate;
    (6) The Quarterly Report discloses any instance during the past 
quarter where the Asset Manager was precluded for any period of time 
from selling Securities purchased under this exemption in that quarter 
because of its relationship to a PNC/BlackRock Related Broker-Dealer or 
of an Affiliated Servicer and the reason for this restriction;
    (7) Explicit notification, prominently displayed in each Quarterly 
Report sent to the Independent Fiduciary of each single Client Plan 
that engages in the covered transactions that the authorization to 
engage in such covered transactions may be terminated, without penalty 
to such single Client Plan, within five (5) days after the date that 
the Independent Fiduciary of such single Client Plan informs the person 
identified in such notification that the authorization to engage in the 
covered transactions is terminated; and
    (8) Explicit notification, prominently displayed in each Quarterly 
Report sent to the Independent Fiduciary of each Client Plan (and to 
the fiduciary of each In-House Plan) that engages in the covered 
transactions through a Pooled Fund that the investment in such Pooled 
Fund may be terminated, without penalty to such Client Plan (or such 
In-House Plan), within such time as may be necessary to effect the 
withdrawal in an orderly manner that is equitable to all withdrawing 
plans and to the non-withdrawing plans, after the date that that the 
Independent Fiduciary of such Client Plan (or the fiduciary of such In-
House Plan, as the case may be) informs the person identified in such 
notification that the investment in such Pooled Fund is terminated.
    (o) For purposes of engaging in covered transactions, each Client 
Plan (and each In-House Plan) shall have total net assets with a value 
of at least $50 million (the $50 Million Net Asset Requirement). For 
purposes of engaging in covered transactions involving an Eligible Rule 
144A Offering, each Client Plan (and each In-House Plan) shall have 
total net assets of at least $100 million in securities of issuers that 
are not affiliated with such Client Plan (or such In-House Plan, as the 
case may be) (the $100 Million Net Asset Requirement).
    For purposes of a Pooled Fund engaging in covered transactions, 
each Client Plan (and each In-House Plan) in such Pooled Fund shall 
have total net assets with a value of at least $50 million. 
Notwithstanding the foregoing, if each such Client Plan (and each such 
In-House Plan) in such Pooled Fund does not have total net assets with 
a value of at least $50 million, the $50

[[Page 78842]]

Million Net Asset Requirement will be met, if 50 percent (50%) or more 
of the units of beneficial interest in such Pooled Fund are held by 
Client Plans (or by In-House Plans) each of which has total net assets 
with a value of at least $50 million.
    For purposes of a Pooled Fund engaging in covered transactions 
involving an Eligible Rule 144A Offering, each Client Plan (and each 
In-House Plan) in such Pooled Fund shall have total net assets of at 
least $100 million in securities of issuers that are not affiliated 
with such Client Plan (or such In-House Plan, as the case may be). 
Notwithstanding the foregoing, if each such Client Plan (and each such 
In-House Plan) in such Pooled Fund does not have total net assets of at 
least $100 million in securities of issuers that are not affiliated 
with such Client Plan (or In-House Plan, as the case may be), the $100 
Million Net Asset Requirement will be met if 50 percent (50%) or more 
of the units of beneficial interest in such Pooled Fund are held by 
Client Plans (or by In-House Plans) each of which have total net assets 
of at least $100 million in securities of issuers that are not 
affiliated with such Client Plan (or such In-House Plan, as the case 
may be), and the Pooled Fund itself qualifies as a QIB, as determined 
pursuant to SEC Rule 144A (17 CFR 230.144A(a)(F)).
    For purposes of the net asset requirements described, above, in 
this Section II(o), where a group of Client Plans is maintained by a 
single employer or controlled group of employers, as defined in section 
407(d)(7) of the Act, the $50 Million Net Asset Requirement (or in the 
case of an Eligible Rule 144A Offering, the $100 Million Net Asset 
Requirement) may be met by aggregating the assets of such Client Plans, 
if the assets of such Client Plans are pooled for investment purposes 
in a single master trust.
    (p) No more than 20 percent of the assets of a Pooled Fund, at the 
time of a covered transaction, are comprised of assets of In-House 
Plans for which the Asset Manager, a PNC/BlackRock Related Entity or 
the Affiliated Servicer exercises investment discretion.
    (q) The Asset Manager and the PNC/BlackRock Related Broker Dealer, 
as applicable, maintain, or cause to be maintained, for a period of six 
(6) years from the date of any covered transaction such records as are 
necessary to enable the persons, described below, in Section II(r), to 
determine whether the conditions of this exemption have been met, 
except that--
    (1) No party in interest with respect to a plan which engages in 
the covered transactions, other than the Asset Manager, and the PNC/
BlackRock Related Broker-Dealer or Affiliated Servicer, as applicable, 
shall be subject to a civil penalty under section 502(i) of the Act or 
the taxes imposed by section 4975(a) and (b) of the Code, if such 
records are not maintained, or not available for examination, as 
required, below, by Section II(r); and
    (2) A prohibited transaction shall not be considered to have 
occurred if, due to circumstances beyond the control of the Asset 
Manager, or the PNC/BlackRock Related Broker Dealer, or the Affiliated 
Servicer, as applicable, such records are lost or destroyed prior to 
the end of the six year period. (r)(1) Except as provided below, in 
Section II(r)(2), and notwithstanding any provisions of subsections 
(a)(2) and (b) of section 504 of the Act, the records referred to, 
above, in Section II(q) are unconditionally available at their 
customary location for examination during normal business hours by--
    (i) Any duly authorized employee or representative of the 
Department, the Internal Revenue Service, or the SEC; or
    (ii) Any fiduciary of any plan that engages in the covered 
transactions, or any duly authorized employee or representative of such 
fiduciary; or
    (iii) Any employer of participants and beneficiaries and any 
employee organization whose members are covered by a plan that engages 
in the covered transactions, or any authorized employee or 
representative of these entities; or
    (iv) Any participant or beneficiary of a plan that engages in the 
covered transactions, or duly authorized employee or representative of 
such participant or beneficiary;
    (2) None of the persons described, above, in Section II(r)(1)(ii)--
(iv) shall be authorized to examine trade secrets of the Asset Manager, 
or the PNC/BlackRock Related Broker-Dealer, or the Affiliated Servicer, 
or commercial or financial information which is privileged or 
confidential; and
    (3) Should the Asset Manager, or the PNC/BlackRock Related Broker-
Dealer or the Affiliated Servicer refuse to disclose information on the 
basis that such information is exempt from disclosure, pursuant to 
Section II(r)(2), above, the Asset Manager shall, by the close of the 
thirtieth (30th) day following the request, provide a written notice 
advising that person of the reasons for the refusal and that the 
Department may request such information.

Section III--Conditions for Transactions Described in Section I(c)

    The exemption is conditioned upon satisfaction of the following 
requirements:
    (a) The Securities to be purchased are pass-through certificates or 
trust certificates that represents a beneficial ownership interest in 
the assets of an issuer which is a trust and which entitles the holder 
to payments of principal, interest and/or other payments made with 
respect to the assets of such trust and the corpus or assets of which 
consist solely of obligations that bear interest or are purchased at a 
discount and which are secured by commercial real property (including 
obligations secured by leasehold interests on commercial real property) 
that are rated in one of the four highest rating categories by the 
Rating Organizations; provided that none of the Rating Organizations 
rates such securities in a category lower than the fourth highest 
rating category (CMBS).
    (b) The purchase of the CMBS meets the conditions of an applicable 
underwriter exemption (the Underwriter Exemption(s)). The Underwriter 
Exemptions are a group of individual exemptions granted by the 
Department to provide relief for the origination and operation of 
certain asset pool investment trusts and the acquisition, holding, and 
disposition by plans of certain asset-backed pass-through certificates 
representing undivided interests in those investment trusts. The most 
recent amendment to the Underwriter Exemptions is PTE 2007-05, 72 FR 
13130 (March 20, 2007), Technical Correction at 72 FR 16385 (April 4, 
2007) (PTE 2007-05).
    (c)(1) The aggregate amount of CMBS of an issue purchased, pursuant 
to this exemption, by the Asset Manager with:
    (i) The assets of all Client Plans; and
    (ii) The assets, calculated on a pro rata basis, of all Client 
Plans and In-House Plans investing in Pooled Funds managed by the Asset 
Manager; and
    (iii) The assets of plans to which the Asset Manager renders 
investment advice within the meaning of 29 CFR Sec.  2510.3-21(c) does 
not exceed 35 percent (35%) of the total amount of the CMBS being 
offered in an issue.
    (2) Notwithstanding the percentage of CMBS of an issue permitted to 
be acquired, as set forth in Section III(c)(1) of this exemption, the 
amount of CMBS in any issue purchased, pursuant to this exemption, by 
the Asset Manager on behalf of any single Client Plan, either 
individually or through investment, calculated on a pro rata basis, in 
a

[[Page 78843]]

Pooled Fund may not exceed three percent (3%) of the total amount of 
such CMBS being offered in such issue, and;
    (3) If purchased in an Eligible Rule 144A Offering, the total 
amount of the CMBS being offered for purposes of determining the 
percentages, described in this Section III(c), is the total of:
    (i) The principal amount of the offering of such class of CMBS sold 
by underwriters or members of the selling syndicate to QIBs; plus
    (ii) The principal amount of the offering of such class of CMBS in 
any concurrent public offering.
    (d) The aggregate amount to be paid by any single Client Plan in 
purchasing any CMBS which are the subject of this exemption, including 
any amounts paid by any Client Plan or In-House Plan in purchasing such 
CMBS through a Pooled Fund, calculated on a pro rata basis, does not 
exceed three percent (3%) of the fair market value of the net assets of 
such Client Plan or In-House Plan, as of the last day of the most 
recent fiscal quarter of such Client Plan or In-House Plan prior to 
such transaction.
    (e) The covered transactions are not part of an agreement, 
arrangement, or understanding designed to benefit any PNC/BlackRock 
Related Entity.
    (f) The covered transactions are performed under a written 
authorization executed in advance by an Independent Fiduciary of each 
single Client Plan, as defined, below, in Section IV(j).
    The written authorization requirement of this paragraph shall be 
deemed satisfied with respect to the covered transactions involving 
ASTs if the Asset Manager provides to the Independent Fiduciary the 
materials described in Section III(g), below, together with a 
termination form expressly providing an election for the Independent 
Fiduciary to terminate the authorization with respect to the covered 
transactions and a statement to the effect that the Asset Manager 
proposes to engage in the covered transactions on a specified date 
(that shall be not less than 45 days after the notice is sent to the 
Independent Fiduciary) unless the Independent Fiduciary signs and 
returns the termination form to the Asset Manager prior to such date.
    (g) The following information and materials (which may be provided 
electronically) must be provided by the Asset Manager to the 
Independent Fiduciary not less than 45 days prior to such Asset Manager 
engaging in the covered transactions pursuant to this exemption:
    (1) A notice of the intent of the Asset Manager to purchase CMBS 
pursuant to Section I(c) of this exemption, a copy of the Notice, and a 
copy of the Grant, as published in the Federal Register, provided that 
the Notice and the Grant are supplied simultaneously;
    (2) A notice describing the relationship of the Affiliated Servicer 
to the Asset Manager.
    (3) The basis upon which the Affiliated Servicer is compensated and 
a representation by the Asset Manager affirming that, the transaction 
was not part of an agreement, arrangement, or understanding designed to 
benefit the Affiliated Servicer; and
    (4) Any other reasonably available information regarding the 
covered transactions that the Independent Fiduciary requests the Asset 
Manager to provide.
    (h) Subsequent to the initial authorization by an Independent 
Fiduciary of a single Client Plan permitting the Asset Manager to 
engage in the covered transactions on behalf of such single Client 
Plan, the Asset Manager will continue to be subject to the requirement 
to provide within a reasonable period of time any other reasonably 
available information regarding the covered transactions that the 
Independent Fiduciary requests the Asset Manager to provide.
    (i)(1) In the case of an existing employee benefit plan investor 
(or existing In-House Plan investor, as the case may be) in a Pooled 
Fund, such Pooled Fund may not engage in any covered transactions 
pursuant to Section I(c) of this exemption, unless the Asset Manager 
provides the written information, as described, below, and within the 
time period described below, in this Section III(i)(2), to the 
Independent Fiduciary of each such plan participating in such Pooled 
Fund (and to the fiduciary of each such In-House Plan participating in 
such Pooled Fund).
    (2) The following information and materials, (which may be provided 
electronically) shall be provided by the Asset Manager not less than 45 
days prior to such Asset Manager engaging in the covered transactions 
on behalf of a Pooled Fund, pursuant to this exemption; and provided 
further that the information described below, in this Section 
III(i)(2)(i) and (iii) is supplied simultaneously
    (i) A notice of the intent of such Pooled Fund to purchase CMBS 
pursuant to this exemption, a copy of this Notice, and a copy of the 
Grant, as published in the Federal Register;
    (ii) A notice describing the relationship of the Affiliated 
Servicer to the Asset Manager;
    (iii) Information on the basis upon which the Affiliated Servicer 
is compensated and a representation by the Asset Manager affirming 
that, the transaction was not part of an agreement, arrangement, or 
understanding designed to benefit the Affiliated Servicer; and
    (iv) Any other reasonably available information regarding the 
covered transactions that the Independent Fiduciary of a plan (or 
fiduciary of an In-House Plan) participating in a Pooled Fund requests 
the Asset Manager to provide; and
    (v) A termination form expressly providing an election for the 
Independent Fiduciary of a plan (or fiduciary of an In-House Plan) 
participating in a Pooled Fund to terminate such plan's (or In-House 
Plan's) investment in such Pooled Fund without penalty to such plan (or 
In-House Plan). Such form shall include instructions specifying how to 
use the form. Specifically, the instructions will explain that such 
plan (or such In-House Plan) has an opportunity to withdraw its assets 
from a Pooled Fund for a period of no more than 30 days after such 
plan's (or such In-House Plan's) receipt of the initial notice of 
intent, described above, in Section III(i)(2)(i), and that the failure 
of the Independent Fiduciary of such plan (or fiduciary of such In-
House Plan) to return the termination form to the Asset Manager in the 
case of a plan (or In-House Plan) participating in a Pooled Fund by the 
specified date shall be deemed to be an approval by such plan (or such 
In-House Plan) of its participation in the covered transactions as an 
investor in such Pooled Fund.
    Further, the instructions will identify the Asset Manager and the 
Affiliated Servicer and will provide the address of the Asset Manager.
    For purposes of this Section III(i), the requirement that the 
fiduciary responsible for the decision to authorize the transactions 
described above, in Section I(c) of this exemption for each plan be 
independent of the PNC/BlackRock Related Entities shall not apply in 
the case of an In-House Plan.
    (j)(1) In the case of each plan (and in the case of each In-House 
Plan) whose assets are proposed to be invested in a Pooled Fund after 
such Pooled Fund has satisfied the conditions set forth in this 
exemption to engage in the covered transactions, the investment by such 
plan (or by such In-House Plan) in the Pooled Fund is subject to the 
prior written authorization of an Independent Fiduciary representing 
such plan (or the prior written authorization by the fiduciary of such 
In-House Plan, as the

[[Page 78844]]

case may be), following the receipt by such Independent Fiduciary of 
the plan (or by the fiduciary of the In-House Plan, as the case may be) 
of the written information described above, in Section III(i)(2); 
provided that the Notice and the Grant, described above, in Section 
III(i)(2)(i) are provided simultaneously. The written authorization 
requirement of this paragraph shall be deemed satisfied with respect to 
the covered transactions involving ASTs if the Asset Manager provides 
to the Independent Fiduciary the materials described in Section 
III(i)(2) above, together with a termination form expressly providing 
an election for the Independent Fiduciary to terminate the 
authorization with respect to the covered transactions and a statement 
to the effect that the Asset Manager proposes to engage in the covered 
transactions on a specified date (that shall be not less than 45 days 
after the notice is sent to the Independent Fiduciary) unless the 
Independent Fiduciary signs and returns the termination form to the 
Asset Manager prior to such date.
    (2) For purposes of this Section III(j), the requirement that the 
fiduciary responsible for the decision to authorize the transactions 
described above, in Section I(c) of this exemption for each plan 
proposing to invest in a Pooled Fund be independent of the PNC/
BlackRock Related Entities shall not apply in the case of an In-House 
Plan.
    (k) Subsequent to the initial authorization by an Independent 
Fiduciary of a plan (or by a fiduciary of an In-House Plan) to invest 
in a Pooled Fund that engages in the covered transactions, the Asset 
Manager will continue to be subject to the requirement to provide 
within a reasonable period of time any reasonably available information 
regarding the covered transactions that the Independent Fiduciary of 
such plan (or the fiduciary of such In-House Plan, as the case may be) 
requests the Asset Manager to provide.
    (l) The requirements of Section II(o), (p) and (q) are met.

Section IV--Definitions

    (a) The term, ``the Applicants,'' means BlackRock Inc. and The PNC 
Financial Services Group, Inc.
    (b) The term, ``PNC/BlackRock Related Broker Dealer,'' means any 
broker dealer that is a PNC/BlackRock Related Entity that meets the 
requirements of this exemption. Such PNC/BlackRock Related Broker 
Dealer may participate in an underwriting or selling syndicate as a 
manager or member. The term, ``manager,'' means any member of an 
underwriting or selling syndicate who, either alone or together with 
other members of the syndicate, is authorized to act on behalf of the 
members of the syndicate in connection with the sale and distribution 
of the Securities, as defined, below, in Section IV(k), being offered 
or who receives compensation from the members of the syndicate for its 
services as a manager of the syndicate.
    (c) The term, ``PNC/BlackRock Related Entity(s)'' includes all 
entities listed in this Section IV(c)(i) and (ii):
    (i) PNC and any person directly or indirectly, through one or more 
intermediaries, controlling, controlled by, or under common control 
with PNC, and
    (ii) BlackRock and any person directly or indirectly, through one 
or more intermediaries, controlling, controlled by, or under common 
control with, BlackRock. For purposes of this exemption, the definition 
of a PNC/BlackRock Related Entity shall include any entity that 
satisfies such definition in the future.
    (d) The term, ``BlackRock Related Entity'' or ``BlackRock Related 
Entities,'' means BlackRock and any person directly or indirectly, 
through one or more intermediaries, controlling, controlled by, or 
under common control with BlackRock.
    (e) The term, ``PNC Related Entity'' or ``PNC Related Entities,'' 
means PNC and any person directly or indirectly, through one or more 
intermediaries, controlling, controlled by, or under common control 
with PNC.
    (f) The term, ``Asset Manager,'' means a BlackRock Related Entity, 
as defined, above, in Section IV(d) or a PNC Related Entity, as defined 
above, in Section IV(e). For purposes of this exemption, the Asset 
Manager must qualify as a ``qualified professional asset manager'' 
(QPAM), as that term is defined under section V(a) of PTE 84-14. In 
addition to satisfying the requirements for a QPAM under section V(a) 
of PTE 84-14, (49 Fed. Reg. 9494 (Mar. 13, 1984), as amended, 70 Fed. 
Reg. 49305 (Aug. 23, 2005)), the Asset Manager must also have total 
client assets under its management and control in excess of $5 billion, 
as of the last day of its most recent fiscal year and shareholders' or 
partners' equity in excess of $1 million
    (g) The term, ``control,'' means the power to exercise a 
controlling influence over the management or policies of a person other 
than an individual.
    (h) The term, ``Client Plan(s),'' means an employee benefit plan or 
employee benefit plans that are subject to the Act and/or the Code, and 
for which plan(s) an Asset Manager exercises discretionary authority or 
discretionary control respecting management or disposition of some or 
all of the assets of such plan(s), but excludes In-House Plans, as 
defined, below, in Section IV(o).
    (i) The term, ``Pooled Fund(s),'' means a common or collective 
trust fund(s) or a pooled investment fund(s):
    (1) in which employee benefit plan(s) subject to the Act and/or 
Code invest,
    (2) which is maintained by an Asset Manager, and
    (3) for which such Asset Manager exercises discretionary authority 
or discretionary control respecting the management or disposition of 
the assets of such fund(s).
    (j)(1) The term, ``Independent Fiduciary,'' means a fiduciary of a 
plan who is unrelated to, and independent of any PNC/BlackRock Related 
Entity. For purposes of this exemption, a fiduciary of a plan will be 
deemed to be unrelated to, and independent of any PNC/BlackRock Related 
Entity, if such fiduciary represents that neither such fiduciary, nor 
any individual responsible for the decision to authorize or terminate 
authorization for the transactions described, above, in Section I of 
this exemption, is an officer, director, or highly compensated employee 
(within the meaning of section 4975(e)(2)(H) of the Code) of any PNC/
BlackRock Related Entity, and represents that such fiduciary shall 
advise the Asset Manager within a reasonable period of time after any 
change in such facts occur.
    (2) Notwithstanding anything to the contrary in this Section IV(j), 
a fiduciary of a plan is not independent:
    (i) If such fiduciary, directly or indirectly, through one or more 
intermediaries, controls, is controlled by, or is under common control 
with any PNC/BlackRock Related Entity;
    (ii) If such fiduciary directly or indirectly receives any 
compensation or other consideration from any PNC/BlackRock Related 
Entity for his or her own personal account in connection with any 
transaction described in this exemption;
    (iii) If any officer, director, or highly compensated employee 
(within the meaning of section 4975(e)(2)(H) of the Code) of the Asset 
Manager responsible for the transactions described, above, in Section I 
of this exemption, is an officer, director, or highly compensated 
employee (within the meaning of section 4975(e)(2)(H) of the Code) of 
the sponsor of a plan or of the fiduciary responsible for the decision 
to authorize or terminate authorization for the transactions described, 
above, in

[[Page 78845]]

Section I. However, if such individual is a director of the sponsor of 
a plan or of the responsible fiduciary, and if he or she abstains from 
participation in: (A) the choice of such plan's investment manager/
adviser; and (B) the decision to authorize or terminate authorization 
for transactions described, above, in Section I, then Section 
IV(j)(2)(iii) shall not apply.
    (3) The term, ``officer,'' means a president, any vice president in 
charge of a principal business unit, division, or function (such as 
sales, administration, or finance), or any other officer who performs a 
policy-making function for a PNC/BlackRock Related Entity.
    (k) The term, ``Securities,'' shall have the same meaning as 
defined in section 2(36) of the Investment Company Act of 1940 (the 
1940 Act), as amended (15 U.S.C. 80a 2(36)(1996)). For purposes of this 
exemption, mortgage-backed or other asset backed securities rated by 
one of the Rating Organizations, as defined, below, in Section IV(n), 
will be treated as debt securities.
    (l) The term, ``Eligible Rule 144A Offering,'' shall have the same 
meaning as defined in SEC Rule 10f-3(a)(4) (17 CFR 270.10f-3(a)(4)) 
under the 1940 Act).
    (m) The term, ``qualified institutional buyer,'' or the term, 
``QIB,'' shall have the same meaning as defined in SEC Rule 144A (17 
CFR 230.144A(a)(1)) under the 1933 Act.
    (n) The term, ``Rating Organizations,'' means Standard & Poor's 
Rating Services, Moody's Investors Service, Inc., Fitch Ratings Inc., 
DBRS Limited, or DBRS, Inc., or any successors thereto.
    (o) The term, ``In-House Plan(s),'' means an employee benefit 
plan(s) that is subject to the Act and/or the Code, and that is 
sponsored by:
    (1) a PNC Related Entity, as defined, above, in Section IV(e), or
    (2) a BlackRock Related Entity, as defined, above, in Section 
IV(d), for their respective employees.
    (p) The term ``Affiliated Servicer'' means a PNC/BlackRock Related 
Entity that serves as a servicer of one or more of the commercial 
mortgage loans in a Pooled Fund that issues commercial mortgage-backed 
securities.
    The availability of this exemption is subject to the express 
condition that the material facts and representations contained in the 
application for exemption are true and complete and accurately describe 
all material terms of the transactions. In the case of continuing 
transactions, if any of the material facts or representations described 
in the applications change, the exemption will cease to apply as of the 
date of such change. In the event of any such change, an application 
for a new exemption must be made to the Department.

Effective Date:
    This exemption is effective as of the date it is published in the 
Federal Register.

Written Comments

    In the Notice, the Department invited all interested persons to 
submit written comments and requests for a hearing on the proposed 
exemption within forty-five (45) days of the date of the publication of 
the Notice in the Federal Register on October 10, 2008. All comments 
and requests for a hearing were due by November 24, 2008. During the 
comment period, the Department received no requests for a hearing. 
However, in an e-mail dated November 24, 2008, the Department did 
receive a comment from the Applicants. Specifically, the Applicants 
seek to correct certain typographical errors found in the operant 
language of the Notice and to clarify the description of a term found 
in footnote 1 of the Summary of Facts and Representations (SFR). The 
Applicants' comments are discussed in the numbered paragraphs below.
    1. Section II(n)(4)(i), as set forth in the Notice, at 73 FR 60334, 
column 3, lines 40-45, reads as follows, ``In the case of an AST, a 
representation of the asset Manager affirming that, as to each AST, the 
transaction was not part of an arrangement or understanding designed to 
benefit the Affiliated Servicer.'' The Applicants have informed the 
Department that the word, ``asset,'' should have been capitalized in 
the term, ``Asset Manager.'' The Department has made the requested 
change to Section II(n)(4)(i) in the final exemption.
    2. Section IV(a), as set forth in the Notice, at 73 FR 60337, 
column 2, line 62, reads as follows: ``The term, `the Applicants,' 
means BlackRock Inc. and the PNC Financial Services Group, Inc.'' The 
Applicants have informed the Department that the word, ``the,'' before 
PNC Financial Services Group, Inc. should have been capitalized. The 
correct name is The PNC Financial Services Group, Inc. The Department 
has made the requested change to Section IV(a) in the final exemption.
    3. Footnote 1 in the SFR, as set forth in the Notice, at 73 FR 
60327, column 2, reads as follows:

    Commercial mortgage-backed securities are non-convertible debt 
securities, pass-through certificates or trust certificates that 
represent a beneficial ownership interest in the assets of an issuer 
which is a trust and which entitles the holder to payments of 
principal, interest and/or other payments made with respect to the 
assets of such trust and the corpus or assets of which consist 
solely of obligations that bear interest or are purchased at a 
discount and which are secured by commercial real property including 
obligations secured by leasehold interests on commercial real 
property that are rated in one of the four highest rating categories 
by the Rating Organizations (such CMBS are described as ``investment 
grade'').

    The Applicants point out that the language of footnote 1, as set 
forth in the Notice, can be read to imply that the term, commercial 
mortgage-backed securities or CMBS includes only securities with 
investment-grade ratings. Alternatively, the passage can be read to 
imply that the ``obligations'' (i.e., the collateral of the trust 
rather than the securities issued by the trust) receive the ratings. 
Accordingly, the Applicants request an amendment to the language of 
footnote 1, as set forth in the SFR. The Applicants requested changes 
are indicated by the underlined phrases, as set forth below:

    Commercial mortgage-backed securities are non-convertible debt 
securities, pass-through certificates or trust certificates that 
represent a beneficial ownership interest in the assets of an issuer 
which is a trust and which entitles the holder to payments of 
principal, interest and/or other payments made with respect to the 
assets of such trust and the corpus or assets of which consist 
solely of obligations that bear interest or are purchased at a 
discount and which are secured by commercial real property including 
obligations secured by leasehold interests on commercial real 
property. CMBS that are rated in one of t