UNITED

UNITED

SECURITIES

STATES

AND EXCHANGE

WASHINGTON

August

D.C

23

COMMISSION

20549

1991

Cohen Esq

Levy Kroll

Simonds

1050 Connecticut

Avenue N.W

Washington D.C 20036

Gary

Freedman

Re

Dear

Mutual Benefit Fund File No 2-36663

MBL Growth Fund Inc

File No 2-96199

MAP Government

Fund Inc File No 2-78975

The Specialty Managers Trust File No 33-23512

Mutual Benefit Variable Contract

Account-7

File No 286722

Markston Investment

File No 801-15894

Management

Mutual Benefit Financial Service

Company File No

Directed

Services

Inc File No 801-32675

801-8154

Mr Cohen

Enclosed

is our response to your letters of August

1991

and August 23 1991

By incorporating

our answer into the

enclosed photocopies

of your letters we avoid having

to recite

or summarize the facts

involved

In any future

correspondence

our Reference

No IP3-91

on

this

matter please

Sincerely

Heidi Stain

Assistant Chief

Office of Insurance

Products

and Legal Compliance

refer

to

[Pub. Avail.: Aug. 23, 1991]

Our Reference

No IP-3-91

Mutual Benefit Fund

File No 236663

MBL Growth Fund Inc

Inc

File No 278975

The Specialty Managers

Trust

File No 3323512

Mutual Benefit Variable

Contract Account7

File No 286722

Markston Investment

RESPONSE

OF THE OFFICE

INSURANCE PRODUCTS

DIVISION OF INVESTMENT

OF

MANAGEMENT

Management

File No 80115894

Mutual Benefit Financial

Services Company

File No 801-8154

Directed

Inc

Services

File No 801-32675

Based

letters of

upon the facts and representations set forth in your

1991 and August 23 1991 and without

August

necessarily agreeing with your legal analysis we would not

recommend

enforcement

action to the Commission against Mutual

Benefit Fund MBL Growth Fund Inc

MAP Government

Fund Inc

The Specialty Managers Trust Mutual Benefit Variable Contract

Account7 Markston Investment Management

Mutual

Benefit Financial

Service Company

and Directed

Inc

Services

pursuant to Sections

15a

and 15b

of the Investment

Company Act of 1940 if Markston

FISCO and DSI continue to perform under their respective

investment advisory

agreements and principal underwriting

further interestholder

vote

agreements without

Markston

DSI

FISCO

2a

On July 16 1991 the Superior Court of New Jersey entered

an Order appointing

of Insurance

the Conunissioner

of New Jersey

as Rehabilitator

of Mutual Benefit Life Insurance

You

Company

note in your letter that there has been no sale or purchase

of

contracts

in connection

advisory or underwriting

with the

of the Rehabilitator

appointment

Moreover you state that the

of the Rehabilitator

has not resulted

appointment

in

in

change

the managing partners

directors or key management

of

personnel

FISCO or DSI

Your letter dated August 23 1991 states

Markston

that the Superior Court of New Jersey on August

1991 entered

1/

The Division declines

to express an opinion

on whether

facts and circumstances

presented

by your letter would

See Investment

satisfy Rule 2a-6

Company Act Release

No 10809 Aug

note

1979

the

an

Order

Continuing Rehabilitators Appointment

and Granting Other Relief

Continuing

Restraints

that facts or conditions different from

those presented

in your letters might require

different

conclusion

Further this response only expresses the Divisions

action and does not purport to express

position on enforcement

on the questions presented

any legal conclusions

You

should

Michael

Wible

Staff Attorney

August 23 1991

note

LAW OFFICES

FREEDMANLEVyKROLLSIMONDS

WASHINGTON

SQUARE-I050

WASHINGTON

202

CONNECTICUT

AVEN

20036-5366

457-5100

GARY 0.COHEN

202 457-5107

CABLE

ATTORNEYS

TELECOPI ER 202-457-5151

August

BY HAND

1991

1940

1940

Act/2a4

Act/15a4

1940

Act/15b

1940

Act/Rule

2a6

DELIVERY

Mr

Clifford

Kirsch Esq

Assistant Director

Office of Insurance

Products

Legal Compliance

Division of Investment

Management

U.S Securities and Exchange

Commission

450

5th Street N.W

Room 10167 Stop 106

20549

Washington D.C

Re

Mutual Benefit Fund Benefit Fund

File No 8112046 and No 236663

MBL Growth Fund Inc

Growth Fund

File No 8113593 and No 296199

MAP Government

Fund Inc MAP Fund

File No 8113548 and No 278975

The Specialty Managers Trust Managers

Tfust

File No 8115629 and No 3323512

Mutual Benefit Variable Contract Account-7

File No 8113853 and No 286722

Markston

Investment

Management

Markston

File No 80115894

Mutual Benefit Financial Service Company

File No 8018154 and No 815263

Directed

Services Inc

File No 80132675 and No 839104

VCA-7

FISCO

DSI

Dear

Mr Kirsch

We

that

write on behalf

of

the

abovenamed companies

the Commission staff furnish us with

letter

to

stating

request

that

it

FREEDMAN

LEvy

will

SIM0NDS

KROLL

not

recommend

Markston

FISCO and

investment

advisory

agreements

and

Commission take

that

the

DSI

continue

principal

service

underwriting

vote

under

the

highly

further

if

management

including

interestholder

described

circumstances

unusual

and

agreements

distributors and sales agreements without

action

their respective

perform under

to

including

agreements

enforcement

below

Companies

Growth

Benefit

and

management

investment

1940

Act

of

as

the

management

VCA-7

account

of

Mutual

life insurance

states

Markston

which

licensed

to

engage

in the

Columbia

is

general

partnership

by Mutual

Act

Benefit

in New

and

Puerto

51%

Benefit

subsidiaries

of

of

Mutual

Life

in

1845

business

in

Rico

the

Life

Benefit

Jersey

life insurance

Life

as

registered

Mutual

organized

of

whollyowned indirect

Mutual

Act

District

owned

The

under

company

Company

Act

the

Life

the

as

Investment

Benefit

the

are indirectly

are both

company

registered

business trust registered

is

separate

investment

presently

Trust

the

under

management

and

under

companies

company

Company

mutual

are corporations

investment

is

is

Funds

Managers

Insurance

all 50

MAP

interests

FISCO

and

Benefit

in

DSI

Life

FREEDMAN

LEvY

SIM0NDS

KROLL

Markston

under

the

FISCO

Investment

and

DSI

are

Advisers

Act

of

under

the

Securities

Exchange

Act

adviser

for Benefit

and Growth

Funds

broker-dealers

registered

1934

Markston

is investment

FISCO

is

investment

underwriter

for Benefit

investment

VCA-7

and

Growth

and

MAP

Funds

and

VCA-7

with

Markston

and

FISCO

regarding

which

has

agreed

to

Mutual

has

for

the

proper

Benefit

Life

organized

Funds Managers

underwriter

principal

entered

entity the personnel

necessary

Trust

are also

DSI

and

Life

each

and

Fund

Benefit

it

FISCO

registered

MAP

Mutual

to

advisers

for

and

pursuant

the

1940

adviser

inents

by

adviser

investment

office

of

and/or

DSI

is

Trust

service

agree

the

to

and

VCA-7

extent

needed

Funds

the

space

and

each

companys

holds

principal

for Managers

separate

provide

conduct

and

into

of

other

interests

resources

business.1

in each

of

VCA-7

Each entity utilizes the support services of Mutual Benefit

Life to different degrees on

cost reimbursement

basis

In the

case of

as to the fair basis for allocating

cost

disagreement

auditors

such basis shall be fixed by the entitys independent

Any employee of Mutual Benefit Life while performing services for

entity shall report and be responsible

solely to the

any such

Each

officers and directors of the entity utilizing the services

its own officers

and related facilities and has

entity maintains

contractual

sufficient staff and resources to meet its respective

obligations

FREEDMAN

LEvy

SIM0NDs

KR0LL

Rehabilitation

16 1991

On July

Order

Order

the

Insurance

New

of

action

the

books

any nature

directs

Life

of

Mutual

and

to

take

such

removing

the

cause

and

Life

2.2

The

Order

grants

the

all of

the

and

The

Order

business

see

surrenders

to conduct

he

as

conditions

deem

may

that

Mutual

contemplates

have

and

paragraph

paragraph

Benefit

of

deposit

personal

property

The

made

Order

Benefit

toward

appropriate

15

in order to

enable

is

The

declaration

of

insolvency

paragraph

authorize

demutualize

Life

restrains

business

2A11

causes

the business of Mutual

in

not

or

and

of

paragraph

continue

does

certificates

all real

of

control

assets contracts

accounts

steps

and

possession

rehabilitation

paragraph

necessary

to

of

Benefit

Benefit

the Rehabilitator

the Commissioner

Mutual

other funds

or

an

of

bank

records

Jersey entered

Rehabilitator

paragraph

business and

funds securities

of

as

Jersey

appointing

immediate exclusive

Rehabilitator

to

Court of New

Superior

copy enclosed

Rehabilitator

title

the

Order

Order

in

policy

loans

and

Benefit

Life

Mutual

be

deemed

16 emphasis

added

and

control

of

Rehabilitator

to

reorganize

or liquidate

Mutual

to paragraphs

continue

not

the

references

will

are to

transfer

Benefit

paragraphs

of

Life

the

Order

FREEDMAN

LEVY

Order

does not

address

conducts

through

subsidiaries

such

advisers

principal

The

Life

SIMONDS

ROLL

investment

as

serving

investment

The

companies

the businesses

and

Order

does

that

Mutual

the

businesses

of

underwriters

to

as

not

address

Benefit

Funds

the

Trust VCA-7 Markston

FISCO or DSI

or their advisory

underwriting

agreements

the

contemplates

Mutual

Life will continue

Managers

Benefit

business

of

VCA7

nonsecurities

continuation

variable

and

insurance

on

payments

annuities

business

of

15a

and

advisory

and

underwriting

any

agreements

Section

2a

direct

or

3A11

of

the

Act

of

indirect

here

the

Lifes

for

connection

in

the

with

Raised

of

termination

involved

company

Benefit

providing

that

15

Sections

the

by

accounts

separate

paragraph

for their automatic

the investment

from Mutual

it

Questions

that

Order

unaffected

distinguishes

related

of

Indeed

and

Act

the

Act3

require

agreements

provide

in

the

of

so

provides

event

defines

transfer

or

references

herein to sections

and rules thereunder

in

effect

substance

assignment

assignment

hypothecation

and

in

rules

to

include

contract

of

are

Each

to

sections

FREEDMAN

LEVY

ROLL

SIMON

by the

Es

assignor

outstanding

voting

assignor

Rule

2a6

result in

change

of

adviser

The

be

and

further

the

deemed

the

of

hypothecation

FISCO

that

that

Funds Managers

interestholder

actual

causes

arises

question

should

do

be

not

deemed

underwriting

We

believe

also

to

each

and

of

new

do

not

that

an assignment

for purposes

of

of

indirect

an

or

the

Rehabilitator

Markston

FISCO and

transfer

agreements

underwriting

of

VCA-7

management

agreements

of

to

or

or

to

Markston

terminate

so

believe

as

should

be

required

to

solicit

agreements

the

constitute

agreements

an investment

parent

control

does not

of

or management

the appointment

Our

We

that

the

of

whether under all of the circumstances

Trust

approval

transaction

is not

and

the assignors

holder

constitute

to

of

security

b2

advisory

of

change

DSI

control

Life the indirect

Benefit

would

in

provides

arises whether

question

result

by

l5a4 or

for Mutual

DSI

securities

actual

block

controlling

underwriter

or principal

Section

of

of

or

View

an

to

that

of

assignment

cause

even

them

if

the

of

appointment

each

the

Rehabilitator

the

advisory

to

terminate

appointment

of

and

the

FREEDMAN

LEvY

SIM0NDS

KR0LL

Rehabilitator

could

be

of

the

interestholders

vote

on

new

we

including

thereunder

should

interruption

from the

The

the

to

date

the

of

and

Order

the

gives

4See

adoption

of

within

as

the

and

advisory

have

all

of

continued

required

to

underwriting

of

the

parties

in

force

without

Order

that

We

the

request

staff has provided

such

assurance

on

for View

the Rehabilitator

literal terms of

described

Rehabilitator

SEC Release

No

Rule 2a-6

of

be

below

appointment

assignment

The

should

for No Assignment

The

an

the

this regard.4

Basis

Basis

assignment the

an

agreements

formally noted

in

such

companies

obligations

deemed

Commission has

basis set out

that

the

be

noaction assurances

constitute

underwriting

believe

agreements

to

investment

and

advisory

Instead

deemed

in

above

title

IC10809

to

Aug

does

Section

appoints

the

not

2a4

Rehabilitator

assets

and

proposing

the

business

1979

constitute

FREEDMAN

LEvY

of

contracts

not

SIMONDS

KR0LL

Mutual

constitute

agreements

Section

2a

hypothecation

of

Markston

or

Mutual

insurance

law8

and

its

hypothecation

the

advisory

of

Section

an

Benefit

Life

right

by court order7

transfer

by

subsidiaries

as

through

controlling

transfer

or

neither

However

literally transferred

that

holds.6

it

assets

and

The

contracts

to the New

hypothecation

by

Jersey

Mutual

assignors

also contemplates

of

underwriting

2a4

pursuant

or

does

however

and

assignor.5

title to the business

not

2a

appointment

assignment

contractual

any

obtained

or

by

nor Mutual

Life

Section

or

contemplates

Benefit

Life

of

The

literal terms

contract

hypothecated

Benefit

the

FISCO DSI

Rehabilitator

of

assignment

an

within

Life

Benefit

assignment

through

block

the

of

transfer

assignors

the proscriptions

in

contained

5Likewise

against

assignment

Section

intended

15

were

to

make

clear

that

the management

is personal

it cannot

contract

that

be

assigned and that you

cannot turn over the management

of other peoples money to someone

else

Investment

Trusts

and

Investment

on

Companies

Hearing

S.3580

Before

Subcomm of the Senate

Comm on Banking

and

Commerce 76th Cong 3d Sess 1940

statement of David Schenker

Chief Counsel

SEC emphasis added

60n

the

corporations

the

contrary

partnerships

Order directly enjoins

all persons

associations

and all other entities

wherever

located from transferring selling

contracts

or assigning

cancelling

any

nature of Mutual Benefit

paragraph

12

7See

infra note

16

8See

infra note

27

and

accompanying

text

terminating

of

any

LEvY

FREEDMAN

SIMONDS

KROLL

outstanding

Life

mutual

owned

securities

voting

by

life insurance

its

policyholders.9

not

transfer

or

hypothecate

that

they

or

hold

securities

The

of

any

FISCO

of

appointment

constitute

Mutual

an

of

the

that

the

Benefit

continues

literally

the

of

Life

to

did

policies

did not transfer

outstanding

voting

holds

it

Rehabilitator

within

and

block

Benefit

DSI

or

the

assignment

owned

policyholders

block

controlling

Markston

is

controlling

Furthermore

hypothecate

The

Mutual

assignor

company

by

be

the

therefore

literal

terms

does

not

Section

of

2a

In economic

does

not

constitute

Congress

under

the

manner

and

federal

an assignment

the

courts

securities

consistent

The

reality the appointment

with

preamble

economic

to the

apply

unless the

courts

order

to

9Policyholders

dividends

N.J

See 18 Appleman

at

147-8

1945

should

avoid

have

be

the Rehabilitator

by

established

the

that

applied

Act

definitions

in

flexible

reality

definitions

definitions

in

contemplated

have

laws

of

in

context

wooden

and

Section

states

otherwise

requires

The

results

have

unrealistic

that

the

and

receive

right to vote

and

17B18-46

S17B18-l3

West 1985

Insurance Law and Practice

10046 at 98 10059

See also paragraph

of the Order

statutory

Stats Ann

10

FREEDMAN

LEvy

KR0LL

SIM0NDS

such

interpreted

Congress

intended

federal

securities

analytical

when

The

reality

laws

that

should

Commission

in

its

include

to

approach

definitions

also

courts

to

have

to economic

has

exclude

which

under

fashioned

the

flexible

for determining

reality

2a-6

falls within

the definition

The

nevertheless

would

be

underwriting

agreements

concept

of

economic

2a4

by

adopting

that

provides

transaction

assignment under Section

deemed

not

if

result

Section

of

Rule

of

the

recognized

administration

not

intended

that

apply

Rule

does

and

looks

between

distinguish

The

definitional

transaction

to

language

to

in

in

terminate

economic

change

of

2a

advisory

reality

actual

that

control

and

the

or

management

See e.g United Housing Foundation Inc

Forman 431

U.S 837 848 1975 Exchange National Bank of Chicago

Touche

Co 544 F.2d 1126 1138 2d Cir 1976 Intl Bhd of

Ross

Teamsters

Daniel 439 U.S 551 1979

11The

rationale

Commission

follows

in

proposing

Rule

2a6

explained

its

as

2a

The

term assignment is defined in section

of the Act

to include any direct or indirect transfer of

control

ling block of the assignors outstanding

voting securities by

holder

of

the assignor

From time to time an

security

investment adviser or principal underwriter to an investment

company may be involved in certain transactions

particular

of

structure

which

ly modifications

corporate

may be

considered

to involve

direct

indirect

transfer

or

of

block of the investment advisers voting

securi

controlling

would

not

affect

the

actual

ties but which

control

or

of the investment adviser

Absent proposed rule

management

transaction

2a6 such

might be viewed

as

an assignment

continued..

10

FREEDMAN

LEVY

SIM0NDS

KR0LL

Assuming

could

2a4

in

the

appointment

does not

actual

The

the

control

2a6

Rule

appointment

appointment

of

change

in actual

control

On the

contrary

the

the

of

or

assignment

of

in economic

management

defines

the

the

under

Section

FISCO

Markston

or

2a

of

Section

not

resulted

in any

FISCO

or

DSI.13

and

the

board

Rehabilitator

or management

has

of

partners

.continued

of

Rehabilitator

reality--result

scope

Rehabilitator

managing

the

of

appointment

definition

Accordingly

exclude

the

the

in

change

DSI.12

to

within

fall

that

arguendo

Markston

of

Markston

2a

within

the meaning of section

for purposes

of

the investment advisory

contract

nating

automatically

with the investment company

underwriting contract

termi

or

an

such

transaction

would not contain any of the

elements which

considered

to be

Congress would have

trafficking in investment advisory or underwriting contracts

in the actual

control or

Moreover where there is no change

of the investment adviser or principal

underwriter

management

and hence the actual management of the investment company

result of the transaction

the transaction

would not

as

with the Congressional concerns

embodied

appear to conflict

in the Act

SEC Release No IC10809 Aug

1979 propos

of

Rule 2a-6

ing the adoption

emphasis added footnote

Nonetheless

abusive

omitted

it could

be argued that

in control

change

Mutual

Benefit

of

Life solely for purposes

to result in

in

would

not be

deemed

rehabilitation

change

subsidiaries

of

control

or management

of Markston

FISCO and DSI

Mutual Benefit Life that in turn would constitute

an assignment

of the advisory

and underwriting agreements

2Alternatively

or

management

13Cf

of

e.g Templeton

Letter

Jan

remained with

Investment

22

1986

control

same individual

11

at

Ltd

SEC No-Action

of

reorganization

Counsel

all times

FREEDMAN

of

SMoNDs

KR0LL

LEvY

of

directors

persons

as

to-day

control

prior to

continues

to

as

companies

FISCO

the

reside

The

change

of

the

in

present

of

each

the

same

Moreover

the

day-

FISCO

and

DSI

of

such

In

this

personnel

the

Order.4

advised

its

investment

intention

to

change

key

above

the

noted

Moreover

as

that

personnel

any

of

Markston

issuance

no

or

Order

the

of

require

consist

to

management

knows

it

in

Part

made

in

not resulted

in

changes

be

DSI.5

the Rehabilitator

appointment

of

actual

control

in

key

have

personnel

FISCO

operations

DSI

management

Markston

the

and

that

not

of

FISCO

companies

does

continue

DSI

did prior to

regard Markston

Order

of

issuance

the

of

it

and

or

management

also has

of

Mutual

Benefit

Life.6

4The

of the industry

and the Commission staff has

practice

in

to conclude that

transaction

does not result in

change

in

where

there

is

no

change

key

management

personnel

management

Life

of the

United

The Equitable

Assurance

See

Society

Letter

States SEC No-Action

Dec 12 1983 request represented

that the advisory

will continue

to be provided by the

services

staff and in the same manner L.F Rothschild

same professional

SEC No-Action

Letter

Jan 24 1983

Earnings and Liquidity

that

the

and

management

operating

personnel

request represented

Smith Barney

will remain the

Inc SEC NoAction Letter

Feb 161976 request represented that no change

Smith Barneys investment management

in personnel

or policy

of

will

result

department

been

e.g

Inc

Co

same

of Mutual

50f course subsequent changes in the circumstances

to

additional

court

Benefit

Life or its subsidiaries

pursuant

in

actual

orders or otherwise may eventually result in

change

control or management

of

6Recently the Commission did not deem the court appointment

trustee with full power duty and authority to manage and

administer

the

business

affairs

and

assets

of

an

investment

continued..

12

FREEDMAN

The

LEVY

SIMONDS

KR0LL

Order

specifically

authorizes

Benefit

Lifes

current management

conduct

Mutual

Benefit

16

the Rehabilitator

personnel

Lifes business

Indeed

to

keep

paragraph

although

Mutual

21

to

the Board

continued

constitute

transfer

of

and

advisory

underwriting

the meaning

of

Section

William Penn

agreements within

Interest Income Fund

File No 33-39645 Pre-Effective Amendment

No

at

filed on June 14 1991 to Registration

Statement

on

Form N14

Commission files show no shareholder vote in connection

with appointment

of trustee

The Commission has however

stated

in the past that

to

transferring actual control or management

receiver

would

constitute

SEC Release

No IC

an

assignment

11005

Jan

1980 emphasis added adoption of Rule 2a-6 see

also Waddell

Reed SEC No-Action Letter March 12 1976

company

to

2a4

it is unclear

In this context

what the Commission intended

the

term

receiver

The federal Bankruptcy

by

Code for example

envisions

well

as

as

liquidations

reorganizations

being

administered

trustee and not

receiver

by

See e.g 11

U.S.C 105

receivers commonly refer to persons

Indeed

assets

where

consolidating

party is incompetent to properly apply

them See Blacks Law Dictionary 4th ed 1957 The term is less

apt where as here there has been no insolvency and Mutual Benefit

Lifes corporate existence and activities continue in an effort to

it to

its

restore

and reinstate

former condition

of

successful

operation

see paragraph

1978

The New Jersey insurance law applicable here reflects

this

between rehabilitation and insolvency

same distinction

or liquida

tion

Chapter 32 of Title 17B of the New Jersey insurance laws is

entitled

Rehabilitation

and

N.J

Stats Ann

Liquidation

The action

insti

17B32-1 et seq West 1985 and 1991 Suppi.

tuted by the Commissioner of Insurance

is one of rehabilitation

not insolvency

See also

or liquidation

See infra footnote 27

16 of the Order

paragraph

the New

law distinguishes

Jersey insurance

from

receiver

Specifically while the word

receiver

is used

in several

sections

of

the New

generically

its

actual

law

meaning

receiver

liquidator

Jersey

may be

rehabilitator

or conservator

as

the context

N.J

may require

Stats Ann

The

emphasis

added

West 1985

of

rehabilitator therefore is distinguishable

appointment

from the

of

receiver

in

context

other than

appointment

In

addition

rehabilitator

17B321k

rehabilitation

13

FREEDMAN

LEvY

SIM0NDS

KR0LL

Directors

of

to-day

issuance

of

control

or

the

of

Rehabilitator

assets

has

paragraph

Jersey

and

possession

Benefit

as

Mutual

the

although

Life

mutual

Life

comprehensive

supervision

of

the

insurance

law.8

Jersey

Indeed

exercising

the

many

resigned

as

of

Commissioner

Order

control

for

the

did

it

actual

prior

day-

to

the

has

the

of

the same powers

over

of

been

Commissioner

Insurance

that

the

company

always

that

the

business

and

provides

purposes

insurance

Benefit

New

has

Order.7

Mutual

of

Life

continues

management

addition

In

Benefit

Mutual

as

of

rehabilitation

organized

in

New

subject

to

the

Insurance

under

Rehabilitator

were available

to

is

him prior

the

President

of

Mutual

Benefit

7Although

Life Henry

down

from that

he

has

stepped

position

to

be

agreed

consultant

for

employed as

period of up to six months see page

14 of

the Order

Furthermore he was succeeded

by Stephen

Kates resignation was the Senior

Carlotti who

prior to Mr

Executive

Vice

President

14

of

Chief

see page

and

Order

Operations Officer of Mutual Benefit Life since 1989

In addition

Mutual

Benefit Lifes Executive

Vice Presidents

Edward

Bull

Robert

and

Donald

Budwick

and

Senior

Vice

Sondergeld

Presidents

Donald

Hailer Jr and Charles

have

each

McCaig

Benefit Life for

agreed to remain with Mutual

of

period

up to

twelve months

see page 14 of the Order

Kates

8Mutuai Benefit Life has operated

and continues to operate

insurer pursuant to authority granted by the Commissioner of

Insurance

N.J Stats Ann S17B17ll.a and 17B1712.a

West

As

New Jersey insurer Mutual Benefit Life has been and

1985

continues to be required to abide by all applicable provisions of

the

New

which

insurance

is

administered

Jersey

law

by the

Commissioner of Insurance

N.J Stats Ann 17B17-13 and 17lCas

an

West 1985

14

FREEDMAN

to

LEvy

the

SIMONDs

KROLL

issuance

the

Conunissioner

and

temporary

extent

it appeared

restrictions

of

protection

the

or

Mutual

afforded

issuance

to

dispose

hearing

so

of

any

determination

subject

to the

oversight

other

arrangements22

any

real

specific

Life

that

the

been

had

of

things

valuation

consultative

by

permissible

Life

Benefit

reason

investment

of

investment

or

warranted

the

many

and

if

condi

portfolio

to

the

the Commissioner

in

of

of

the

Benefit

Life

it

by

the

operations

of

9N.J

Stats Ann

17B206

West 1985

20N.J

Stats Ann

l7Bl845

West 1985

2N.J

Stats Ann

l7Bl857 1858

22N.J

Stats Ann

S17B1864

23N.J

Stats Ann

17Bl92 West 1985

15

and

West 1985

Order

includ

to

provide

actuarial

1861

of

reinsurance

organization2

investment

the

Insurance

reserves2 and the ability

administrative

after

the policyholders

issuance

of

to

prior

Mutual

acquired

aspects

the

such restrictions.9

require

interest

prior to

reserves

Insurance

of

estate

changes

of

or

Order

reasonable

impose

by Mutual

surplus

Commissioner

of

Benefit

class

capital

or policyholders

Mutual

among

its

Moreover

type

the

of

giving due regard to policyholders

Order had the power

and

to

condition

the

required.2

ing

Life

by

the

addition

that

issuance

power

may be made

financial

Benefit

safety of the public

In

that

the

upon

the

the

had

to the Commissioner

tions generally

content

Prior to

Insurance

of

investments

of

Order

the

of

loss

West 1985

FREEDMAN

LEVY

SMoNDs

KR0LL

data

prevention

services

processing

the

sum

In

constitute

outstanding

Markston

FISCO

2a4

Assuming

Rehabilitator

in

or

could

direct

in

FISCO

DSI

or

Rehabilitator

Section

24N.J

or

DSI

indirect

any

change

the

constituted

in

of

key

the

fall within

of

Rule

the

not

advisory

or

block

of

actual

control

personnel

2a-6 the

of

Section

the

Section

not resulted

and

of

has

not

Markston

appointment

definition

Life

of

under

-- has

the

of

Benefit

terms

assignment

l7Bl843 West 1985

16

did

appointment

2a4

Stats Ann

the

Mutual

reality

management

under

of

literal

an

collection

contract.24

controlling

that

transfer

and

Rehabilitator

securities

within

Accordingly

not

of

-- in economic

or

does

or

arguendo

have

annuity

hypothecation

interests

the appointment

resulted

in

or

or

the

of

appointment

agreements

voting

insurance

any

transfer

underwriting

2a

of

independent

claims

accounting

of

the

assignment

FREEDMAN

LEvY

SIMONDS

KR0LL

Basis

for No

Shareholder

has provided

Congress

flexible manner

in

affect

adversely

Section

accordance

so

far

the

as

its

Section

which

interest

of

effects

can

to

the

the Act

present

eliminate

Indeed

as

such

25See

1b

control

need

shown

assignment

not

the

note

or

enumerated

interest

public

that

management

of

be interpreted

that

the

such

Act

exclude

11

17

transactions

the

and the

adverse

investment

of

security

to

in

and

in

holders

apply where

an

is

to

intended

above the Commission has adopted

to

that

interpreted

are to mitigate

declares

abuses

abuses.25

supra

interpreted

conditions

be

conditions

without the consent

is transferred

defining

the

the national

arise

did not

present

which

Section

assignment

2a6

and purposes

investors

Presumably

eliminate

shall

affect

when

or

shall be

Act

the

eliminate

adversely

the Act

investors

of

that

policy

that

mitigate

interest

feasible

as

companies

so

declares

with

Vote

that

do

Rule

not

FREEDMAN

LEvY

SIM0NDS

KR0LL

that

Assuming

be

deemed

be

abuses

that

The

was

constitute

to

should

the

Act

contracts

investment

company

sometimes

even

The

agreements

provide

the

of

remedies

these

took

the

Congress

appointment

abuses

of

purpose

of

associated

the

contrary

1b

shows

trafficking

the

present

place

without

the

advisory

on

that

in

the

and

changes

the consent

public

and

in

and

security

underwriting

their assignment

eliminate

Congress

advisory

frequent

that

to

not

eliminate

the

Rehabilitator

with

trafficking

appointment

removing

rehabilitation

the

of

the

abuses

and

cause

does

in

not

was

one

of

out

growing

present

any

conditions

was

made

that

of

On

the

for

the

agreements

Rehabilitator

have

made

necessary.27

of the

Securities

and

Commission on

Exchange

of Investment

Policy Implications

Company Growth H.R

2337 89th Cong 2d Sess 150

26Report

Public

No

does

of

termination

adopted

vote

knowledge

requirement

for

interestholder

no

1940 whereby

prior to

managements

could

practices

The

the

to

Section

of

the Rehabilitator

assignment

widespread

without

holders.26

the

history

the

with

of

assignment

intended

is

legislative

concerned

an

because

required

underwriting

the appointment

1966

the

Rep

rehabilitation process was commenced pursuant to Section

Title 17B of the New Jersey insurance

law with the

consent

the Board of Directors

of Mutual

Benefit Life

N.J

Stats Ann

See also paragraphs

and

West 1985

27The

32-6k

of

of

17B326k

continued..

18

FREEDMAN

LEvY

The

Rehabilitator

Jersey who

the

SMoNDs

KR0LL

is

of

of

the

appointment

chase

of

advisory

appointment

of

commission

or

person

there

or

contracts.28

the Rehabilitator

other

is

administration

control.3

pecuniary

to

in

all

27

.continued

of

the Order

commenced

otherwise

on

the

provided

Stats Ann

paragraph

in

has

to

that

any

been

In

no

be

assets

of

by the

the

of

pur

addition

the

finders

fee

individual

or

from

Superior

the

Court of

for

his

possession

partners

or

shareholders.29

Rehabilitator

managing

sale or

bond

into

coming

the

recouped

disadvantage

on his official

with

no

company

could

Jersey with

connection

generated

was appointed

the

In

New

New

of

the proper

also

or

has

not

or

key

directors

the

rehabilitation

was not

process

or

as

insolvency

deficiency

any

New Jersey insurance law

See N.J

and

through

West 1985 See also

Notably

basis

of

for by the

17B32-6a

10 of the Order

28See

Securities

Investment

Part

Exchange

supra

and

E.l.a

See

Commission

of

the

generally

Report

Investment

Trusts

and

1278-13 03

279 76th Cong

on

H.R Doc No

Companies

hereinafter SEC Report to Congress

29Such

existing

at

of

finders

recoupment

the time Section

1b

30N.J Stats Ann

one of the abuses

See generally

adopted

was

1089

gain

the

appointment

change

has

amount

any

responsible

of

The

resulted

1940

underwriting

Insurance

law of

Rehabilitator

companies

New Jersey and

the insurance

of

Life

the Rehabilitator

Moreover

Commissioner

Benefit

Mutual

particularly

investment

under

charged

supervision

the

is

10921093

l7B

fees was

one

was adopted

3215.d

West 1985

the

of

Selfdealing

1b

at

the time Section

existing

SEC Report to Congress at 1029-1031

13631366 and 19181936

19

abuses

Id

was

1086-

FREEDMAN

SIM0NDS

KROLL

LEvY

management

of

personnel

FISCO

Markston

Furthermore the appointment

no secret

to the

spread

its

to

publicity

current

holders

will

if

so

they

continue

unusual

is

included

in

requiring

31See

of

to

disclosing

the

of

the

the

investment

supplement

Interest-

appointment.32

right to

redeem

wide

and

prominent

Each

The

companies

interestholders

existing

to have

statement

agreements

Rehabilitator

further

given

is certainly

their interests

choose.33

underwriting

be

have

investment

appointment

prospectus

proxy

The

the

the

of

television

has distributed

companies

to

and

DSI.31

of the Rehabilitator

interestholders

radio

newspapers

or

would

be

approval

presented

by

still quite

fluid

the

proxy

statement

and

could

proxy material

addition

the

of

new

advisory

and

of

the

problematic

situation

revised

In

seeking

disclosure

the

appointment

disclosure

quickly

become

required

to

outdated

as

the

situation

of

the

appointment

develops

of

the

supra note

32See

file numbers

this letter

for the

investment

companies

supra

page

33The

Order

that

account

specifically

provides

separate

interestholders

continue

to have

the right to redeem

paragraph

Mutual Benefit Life is seeking confirmation that variable

life insurance policyholders

continue to have

right to redeem

The right of redemption with respect to shares of the Funds and the

Trust continues under the federal securities laws

15

20

FREEDMAN

LEVY

SIMONDs

KR0LL

Rehabilitator

as

agreements

that

could

technical

argument

Certainly the

difficult

for

personnel

of

agreements

difficult

negative

the

that

Markston

FISCO

and

themselves

have

not

vote

on new

of

another

requiring

confuse

interestholders

investment

mass

investment

consequences

with

investments

to

investment

programs

same and

the

where

it

would

be

may

of

consequences

vote

the

not

cause

new

advisory

with

FISCO

and

DSI

and

rehabilitation

of

agreements

adverse

cash

that

emphasize

new

for

further

redemption

proceeds

expense

ratios

of

precipitate

not

only

interestholders

the

disposition

21

could

also

immediate

higher

agreements

solicitation

could

consequences

also

which

the

could

process

of the

assignment

solicitation

proxy

include

generate

Markston

technical

but

companies

could

management

approve

companies

approval

redemptions

key

be

interestholders

the

in another

thereby

interestholder

the

agreements

completion

arguably result

the

the

such

will

removed

assuming

underwriting

highly

Finally

grasp

where

agreements

to be

remain

changed

to

is

assignment

where

grasp

DSI

interestholders

Rehabilitator

The

to

existing

interestholders

the

technical

any

the

termination

confuse

of

of

assignment

their

in

may

significance

for

subsequent

result

interestholders

Moreover

and

an

constituting

of

Such

portfolio

dislocation

for

the

of

remaining

FREEDMAN

LEvy

SIMONDS

KR0LL

shareholders

which

publicity

The

Mutual

investment

unfortunately precipitated

companies

redeem

respectfully

highly

technical

contribute

to

be

best

the

in

while

submit

mindful

that

under

interests

of

the

and

thoughtless

received

widespread

run on

the bank.34

their

uncertain

describing

and

underwriting

circumstances

redemptions

the

investment

the

Act

to

obligations

statement

advisory

needless

of

of

proxy

termination

could

agreements

Lifes situation

Benefit

that

here

would

companies

or

not

their

interestholders

In

to

sum

Congress

mitigate

interest

or

intended

eliminate

investors

of

conditions

Rehabilitator

interestholder

vote

should

which

none

of

the

abuses

there

has

been

no

of

presents

be

be

interpreted

adversely

Accordingly

the

appointment

to

even

in

affecting

the

that

the

assuming

constitutes

required

flexibly

an

the

assignment

present

that

the

Act

is

purchase

or

sale

of

no

situation

intended

to

eliminate

Notably

any

advisory

Newark

Star Ledger July

17 1991 at 34 col

that Samuel Fortunato Commissioner of Insurance

of New

recent spate of adverse publicity concerning

Jersey said that

the companys problems in commercial real estate had compounded

its

some

customers

and

run

of

problems

by frightening

fueling

34The

reported

redemptions

22

FREEDMAN

LEvy

SIMONDS

KROLL

or underwriting

agreement

in connection

Rehabilitator

Moreover

the appointment

has generated

that

recouped

fees

or

ment

companies

the

other

commissions

In

be

the Rehabilitator

addition

administration

proper

could

the

of

assets

Finally there has been adequate

of

Rehabilitator

the

solicitation

problematic

could

lead

to

the

given

to

mass

of

unusual

the appointment

of

circumstances

for

Life

Benefit

would

the

invest

responsible

Mutual

disclosure

appointment

highly

is

of

finders

no

from the

interestholders

the

the

regarding

with the appointment

Any

proxy

necessarily

be

presented

and

redemptions

Conclusion

For

the

Commission staff

This

the

letter

We

are

investment

and

should

grant

follows

up several

staff concerning

staff prior to

three

the

this

addressing

the

five

is

the

matter

issuance

companies

of

we

reasons

foregoing

of

this

the

respectfully

conversations

We

23

the

raised

we have

this matter

had with

with

the

of

the

Order

letter

funds

that

noaction relief requested

to

life insurance

mutual

submit

you

because

company

one

separate

offer their shares

account

exclusively

FREoMAN

to

LEvY

SIMONDS

KR0LL

life insurance

This

tives

of

letter

the

separate

company

is

based

note

that

independent

inquiry

could

modify

the

happy

to meet with you to answer

Order

we

involved

companies

We

what

on

accounts

We

questions

me

Diane

Ambler

firm if you

have

any

questions

or wish

Gary

GOC/cjc

Enclosures

cc

Heidi Stain

Michael

Esq

Wible

of

Representatives

call

of

have

the Superior

Please

Order

Six copies

understand

letter

Esq

24

or

to

from representa

not

Court of New

the companies

and

discuss

Richard

discuss

Cohen

conducted

any

Jersey

would

be

this matter

Choi

this

at

this

matter

16 1991

CHAMBERS OF

DGE PAUL

LEVY

DEL TUFO

ROBERT

Attorney General of New Jersey

for Plaintiff

Attorney

R.J Hughes Justice Complex

CN 112

08625

Trenton New Jersey

292-1506

609

SUPERIOR

COURT OF NEW JERSEY

CHANCERY

DIVISION

MERCER COUNTY

GENERAL

PART

EQUITY

DOCKET NO C-91-00109

IN THE MATTER

OF THE

REHABILITATION

OF MUTUAL

BENEFIT LIFE INSURANCE

Mutual Insurance

COMPANY

of

New Jersey

Company

This

Del

Tufo

matter

Commissioner with

Insurance

counsel

Mutual

to

Benefit and

to

the

the

Jersey

New

consent

Esq

of

Mutual

of

it appearing

to

of

the

defendant

Mutual

17B32-6k

and

the

of

17B32-7a

directing

th

an

by

for

Insurance

Mutual

Benefit

for the

court

that

Robert

plaintiff

hereafter

Benefit

Life

by

defendants

and

Moore

for

rehabilitation

of

Swaine

delinquency

against

Court

attorney

Cravath

Commissioner

entry

the

defendant

N.J.S.A 17832-7a

commencement

to

to

opened

Commissioner of

Butler

Samuel

consented

of

hereafter

Company

an order pursuant

been

having

Fortunato

Action

CONSENT

ORDER TO SHOW CAUSE

WITH

TEMPORARY

RESTRAINTS

Genera

Attorney

Samuel

Civil

the

parties

proceedings

by

have

the

Benefit

pursuant

to

N.J.S.A

Order

pursuant

to

N.J.S.A

Commissioner

to

rehabilitate

said

and

defendant

the court

of

the

General

Attorney

to

counsel

and

the

in

court

oral

and

papers

this

for

matter

representations

defendant

for

Order

Consent

and

for

good

shown

cause

IT

IS

on

this

of_JL1L

day

1991

ORDERED

follows

as

consented

Having

Directors

of

in its existing

1991

the

effective

date

same

Rehabilitation

form

and

all subsequent

continue

with

Orders

of

this

his

successors

Mutual

the

in

of

office

Insurance

powers

set

forth

expressed

or

in

shall

Effective

at

Company

in

of

the

terms

of

Insurance

the

this Order

operations

and

the

Court

REHABILITATOR

N.J.S.A

are

Life

authority

of

Insurance

Benefit

Benefit

of.iL/

Life

successor

APPOINTED

to

Pursuant

Commissioner

as

Mutual

the472 noon

the .terms

COMMISSIONER

Fortunato

in

Board

on

Mutual Benefit

time

shall

17B32-6k

operations

at3toclock

consistent

company

all

cease

its

of

resolution

through

N.J.S.A

to

pursuant

REHABILITATION

COMMENCING

ORDER

to

the

considered

having

that

appearing

submitted

is herewith

Rehabilitation

and

further

it

of

hereby

17B32-15a

the

appointed

Company and

this

implied

Order

under

17B32-1 et

-2

State

the

are

with

Samuel

Jersey

and

Rehabilitator

of

of

New

vested

all

the

provisions

in addition

powers

of

and

N.J.S.A

Rehabilitator

The

person

in

to

the

accomplishing

Rehabilitator

to

subject

exercise

shall

serve

the

approval

all

of

pursuant

Compensation

of

Rehabilitator

of

out

paid

Rehabilitator

omissions

in

provided

that

and

without

intent

Deputy

All

of

the

powers

and

to

Order

this

be

to

the

exclusively

assets

have

no

with

such

or

acts

willful

of

of

costs

and

in connection

capacity

New

Jersey

Tort

acts

or

faith

criminal

or

the

court

assets

of

Mutual

to

be

an

thus

the

Deputy

in good

and

and

of

his

and

be

deemed

shall

not

Claims

Act

-3-

be

the

shall be

Rehabilitator

as Deputy

not

provisions

The

against

shall

Jersey

be

brought

funds

New

shall

Rehabilitator

Deputy

lawsuit

any

the

of

the

with

of

State

by

by

out

the

law

incurred

Commissioner

Rehabilitator

the

attorneys fees

the

Deputy

and

negligence

gross

of

The

set

for

undertaken

are

approval

paid

be

to

in

applicable

court

liability

omissions

and

entitled

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as

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vested

the

this

duties

his

The

be

shall

Mutual

personal

misconduct

expenses

shall

to

approval

the

him in his representative

subject

and

Rehabilitator

Rehabilitator

authorities

to

and

the

Rehabilitator

the

connection

Rehabilitator

of

pleasure

Rehabilitator

funds

shall

the

the

Order

this

Deputy

subject

the

at

the

Rehabilitator

of

directives

assist

to

other

or

consultant

appoint

may

Rehabilitator

as Deputy

serve

REHABILITATOR

DEPUTY

OF

APPOINTMENT

and

shall

Benefit

employee

of

to

the

subject

N.J.S.A 591-1

et

POSSESSION

take

to

title

the

to

business

action

books

funds

securities

of

nature

any

of

supplies

Mutual

Benefit

funds

and

17B32-l5c

the

filing

hereof

with

the

of

corporate

and

deeds

the

would

be

title

duly

with

imparted

filed

or

by

the

persons

or

entities

behalf

of

those

funds

within

10 days of

over

the

to

with

of

funds

shall

of

of

the

order

and

or

or

an

as

evidence

of

and

Except

notice

all other

of

or

accounting

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those

case

notice

upon

property

file

the

Benefits

deeds

and

brokers

with

in the

same

of

or

jurisdictions

other

Order

and

the

the

Order turn

-4-

to

this

Court

recorder

assets

Rehabilitator

Pursuant

or

forthwith

this

of

located

this

with

property

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sale

that

in

and

which

impart

all agents

property

entry

the

bill

of

fixtures

such

of

this

deeds

shall

elsewhere

Benefit

or

of

causes

property

hereafter

are

and

or personal

including

in

of

deposit

furniture

of

hereby

of

recording

Clerk

located

holding

assets

or

recorder

Rehabilitator

Mutual

real

discovered

offices

recorded

indicated

all

jurisdiction

deed

by

provided

or property

the

is

property

otherwise

the

administrative

estate

where

of

control

certificates

and

located

is

assets contracts

Benefit including

wherever

and

and

possession

accounts

be

recorder

as

bank

OF TITLE

granted

hereby

the

may

copy

real

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of

which

certified

of

all

other

or

is

exclusive

and

records

office

N.J.S.A

immediate

NOTICE

RECORD

Rehabilitator

The

directed

ASSETS

OF

on

of

and

shall

funds

assets

REHABILITATORS

The

conducting

the

such

steps

as

the

toward

appropriate

made

to

business

to

and

protect

insurance

LTD

group

preserve

the

collectively

limited

to

overall

benefit

subject

to

of

to

immediately

begin

taking

deem

conditions

which

have

Commissioner

is

hereby

and

as he

designee

deem

may

existing

appropriate

health

group

insurance

disability

business

including

but

not

separate

subsidiary

for

the

to

this Court

by

to

may

long-term

Benefits

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approval

and

and

his

valuable

group

assets

transferring

or

steps

the

life insurance

directed

The

necessary

BUSINESS

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cause

necessary

such

to

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the

removing

take

of

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rehabilitation

authorized

is hereby

Rehabilitator

begin

TO CONDUCT

AUTHORITY

creditors

and

policyolders

upon

the

return

date

OF

BANK

ACCOUNTS

of

this

name

the

Order

NAME

CHANGE

The

of

name

any

or assets

of

held

AND

Rehabilitator

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with

assets

necessary

rpm

for the

bank

any

and

such

proper

INJUNCTION

may

savings

may

to

his

own

funds

or

other

change

Benefits accounts

financial institution

other

WITHDRAWAL

and

withdraw

loan

association

such

funds

or

conduct

rehabilitation

AGAINST

the

CONDUCTING

any

or

other

accounts

institutions

of

take

property

lesser

and

action

BUSINESS

MAKING LEVIES

INTERFERING

WITH REHABILITATION

SUITS AGAINST

DISPOSING

OF ASSETS

AND PURSUING

THE REHABILITATOR

ESTATE AND REINSURERS

All

employees

any

of

nature

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officers

Benefit

including

but

directors

and

not

all

other

limited

agents

and

or

entities

of

claimants

holders

of

policyholders

to

persons

or

plaintiffs

physicians

and

any

Mutual

Mutual

Deputy

or

other

having

and

enjoined

Benefit

medical

crossclaims

including

any

action

any

agencies

governmental

claims are hereby

of

in

petitioners

hospitals

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under

beneficiaries

contracts

annuity

against

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claims

of

authorized

and

against

third party

from

restrained

unless

nature

any

counterclaims

any

providers

care

of

or phase

portion

the

by

the

business

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or

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action

at

Mutual

against

Commissioner

or

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suit

law

Benefit

and

his

against

the

In

its

equity

in

successors

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prosecuting

other

or

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in receivership

estate

Deputy

further

or

or

proceeding

against

the

Rehabilitator

as

appointed

pursuant

to

above

paragraph

or

making

or estate

disbursing

or

property

Rehabilitator

executing

levy

any

upon

the

property

Benefit

of Mutual

selling

and

contract

health

bringing maintaining

any

Benefit

or

conducting

so

Mutual

disposing

of

of

nature

any

may direct

transferring wasting

or encumbering

of

in any

Mutual

in writing

or

in

any

manner

Benefit

until

or

otherwise

the

except

further

assets

as

the

of

the

order

court

interfering

or

any

successors

property

duties

and

as

in

assets

office

of

Rehabilitator

Mutual

in his

way

with

the

title

to

the

Benefit or in the discharge

of

his

thereof

possession

pursuant

to

of

or

Commissioner

this

Order

All

persons

or entities

hereby

restrained from

prosecuting

or indirect

of

reinsurer of

any

Mutual

this rehabilitation

or

distribution

reinsurer

of

from

terminating

Benefit

changing

coverage

contract

with

Mutual

Benefit

The

Rehabilitator

any contract

best

or

with

interests

of

reinsurer

the

other

person

whether

premiums

Mutual

Benefit

credit

or

his

set-off

account

premium

on

as

with

any

of

policy contract

or

claim

Mutua

cancelled

is hereby

under

each

extend

or

renew

or

reinsurance

policy

or

of

may

terminate

that

premium

or

is contrary

rescind

to

the

PREMIUMS

broker

finance

premium

company or

insured

responsible

shall

be

obligated

to

or

as

unearned

of

date

be

and

restrained

non-payment

or reinsurers

payment

and

any

for

of

enjoined

to

failing

from

result

the

the

shall

as

than

other

earned

reduced

reason

except

agent

premium

of

payment

be

Rehabilitator

partial

UNPAID

any

to

in rehabilitation

estate

Any

issued

policies

the

by

Rehabilitator

Deputy

of

any

cancelling

or

reinsurer

of

Benefit

reducing

any

CONTRACTS

shall not

reinsured

Mutual

AND

or by

further

Benefit

Mutual

recoverable

proceeding

on

such

with

are

Rehabilitator

against

reinsurance

POLICIES

amounts

the

maintaining or

actions

any

agreements

REINSURANCE

The

than

commencing

for proceeds

or other

or treaties

other

nature

any

direct

any

Benefit

Mutual

of

allowed

Benefit

the

shown

entry

in favor

for

contract bond

-7-

the

or

of

pay

on

of

this

such

unearned

the

for

any

the

unpaid

records

of

Order

No

person

against

portion

of

policy unless

the

contract

that

prior to the

cancelled

of

entry

this

ii the unearned

bond

contract

the

to

The

insured

of

entry

Rehabilitator

person

any part

to

person

such

or policy

Order

shall

also

Mutual

Benefit

shall

due

Mutual

Benefit

to

Mutual

be

refunded

the

any

to

that

or credited

recover

to

pay

any

the

from

such

time

as

insureds

earned

unpaid

shown

to

commission

represents

individual

the

on

was

cancelled

prior

and

group

obligated

at

the

have

premium

All

on

insureds assigns

unearned

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of

and

premium

right

policy

Order

in fact

was

or

the

or

this

bond

of

premium

records

of

Benefit

POLICY

CONTINUATION

CONTRACT

10 All contracts

of coverage

shall

remain

in full

force

court

except

where

cancelled

similar

Notwithstanding

the

Mutual

Benefits

such

cancellations

are

policy

cancel

policy

according

to

each

above

any

The

where

further

Order

of

this

premium

or

for

normal

of

date

expiration

cancellations

initiated

shall

be

only

prospective

law

by

Rehabilitator

individual

Mutual

policy

allowable

such

Benefit

by

non-payment

the

upon

issued

until

effect

for

policyholders

individual

any

or

reasons

and

CANCELLATIONS

AND

shall

cancellation

or group

and

policy

have

the

is allowable

or

binder

where

to

according

by

each

right

to

law

and

by

TRUST

11 Al trust

are

party

make

to

permitted

until

frozen

hereby

further

of

Rehabilitator

Deputy

transactions

relating

INJUNCTION

wherever

which

such

no

with

this

court

deems

it

to

are

any

rights

to

and

from

interfering in

partnerships

associations

enjoined

and

concealing

disposing

of

restrained

or

assigning

to

any

and

Rehabilitator

to

approve

the

and

all

the

Those

persons

other

wasting

13 All

holders

secured

collateral

holders

priority or preferred

Benefit

from

including

taking

any

or

interests

Benefit and

are

destroying

of

of

Mutual

Benefit

CREDITORS

parties

pledgees

property

or assets

entity

to

action

causes

in any

whatsoever

hereby

disbursing

claiming

steps

the

transferring selling

persons

governmental

of

corporations

other

any

from

possession-

entities

BY SECURED

or

entities

conduct

assets contracts

creditors

persons

restrained

with

all

ACTIONS

other

Mutual

of

property

cancelling

AGAINST

or

certain

all

Rehabilitators

manner

and

court

funds records or other property of any nature

INJUNCTION

trust

the

and

enjoined

with

any

such

is

REHABILITATION

associations

from

terminating

respect

this

Benefit

Mutual

beneficiary

of

any

of

or

WITH

Order

assets

rehabilitation

trustee

is

trust

hereby

the

Benefit

unless

INTERFERING

mariner

title

or

Mutual

advisable

such

any

partnerships

in

that

further

located

interfering

of

AGAINST

12 Until

corporations

agreements

transactions

any

Order

AGREEMENTS

lien

secured

of

Mutual

are

hereby

enjoined

transfer

sell

encumber

attach

dispose

of

or

exercise

property

or assets

of

Mutual

APPOINTMENT

to

or

employ

compensation

of

accountants

actuaries

as

he

such

such

considers

this

conducting

assets

to

and

RESTRAINTS

ON POLICY

on

lapses

cash-outs

payment

of

these

restraints

to

payments

do

beneficiaries

pursuant

to

paid

LOANS

AND

of

out

fix

the

employees

other

and

personnel

expenses

of

Benefit

and

the

funds

and

of

on

or

policy

loans

variable

the

of

policies

under

payment

annuities

10

on

These

values

transfers

funds

and

the

except

as

this

court

however

of

regular

benefit

disability

policy

holders

annuity

or

or group

policy

surrender

kind

beneficiaries

existing

Mutual

any

of

beneficiaries

lending

redemptions

disbursement

policy

policy

on

cash

or

order

further

life group disability

any

SURRENDERS

deposits

group

with

to

Mutual

imposed

options

enjoin

restraints prohibit

connection

be

pension

the

not

health

pension

contracts

and

of

or periodicpayments

lifa insurance

beneficiaries

these

of

herein pending

provided

is

agents clerks

payment

conversions

benefits

any

Rehabilitator

and

compensation

hereby

loans

policy

withdrawal

surrenders

the

assistants

all

shall

15 Restraints are

funds

any

Benefit

of Mutual

Benefit

against

PERSONNEL

employ

possession

taking

proceeding

to

counsel

consultants

of

OTHER

continue

deputies

necessary

and

persons

AND

N.J.S.A 17932-17

to

in or

rights

Benefit

OF DEPUTIES

14 Pursuant

authorized

purported

form

any

or

disbursement

medical

insurance

FA85

Nor

shall

separate

accounts

restraints

shall

in

take

effect

immediately so that

not

actually

this

Order

been

mailed

shall

be

payments

requested

actually

mailed

be

honored

proper

and

in compliance

retain

his

full

voidable

to

be

and

hardship

may

be

at

other

to

the

of

the

date

those

checks

or

payments

however

to

administration

the

The

he

of

of

which

have

been

the

Order

will

are

shall

otherwise

as

The

determines

rehabilitation

imposed

the

otherwise

payments

any

or his deputy

the

restraints

or

of

other

Commissioner

challenge

17B32-25

which

discretion

the

law

relevant

entry

all

of

as

N.J.S.A

to

payments

the

have

will

as

Benefit

obligations

exceptions

paid

or

with

under

may pay

essential

checks

authority

transfers

Rehabilitator

restraints

that

provided

to

prior

the

by Mutual

which

payInents

to

subject

Any

Benefit

Mutual

by

or other

checks

any

estate

this paragraph....

by

Rehabilitator

or

Deputy

Rehabilitator

NOT

16 This

such

insolvency

Property

and

as

DECLARATION

Order

would

1730A-1 et

or

INSOLVENCY

shall

not

be

activate

the

provisions

Insurance

Liability

OF

the

Guaranty

provisions

of

deemed

declaration

of

the

New

of

Jersey

Association

Act N.J.S.A

similar Act

of

any

other

State

CAPTION

17 All further

bear

the

caption

and

FOR

PROCEEDINGS

filed

papers

in

these

proceedings

shall

beentitled

IN THE MATTER

OF THE

REHABILITATION

OF MUTUAL

BENEFIT LIFE INSURANCE

INSURANCE COMPANY

SUPERIOR

COURT OF NEW JERSEY

CHANCERY

DIVISION

MERCER COUNTY

GENERAL

EQUITYART

DOCKET

NO

11

APPLICATION

18

make

he

further

sees

The

FOR

Commissioner

RELIEF

Rehabilitator

or

for such

application

further

and

may

at

time

any

different

relief

as

fit

RETENTION

19 This

purposes

court

20 The

continue

to

from

policies

policies

JURISDICTION

shall

retain

and

POLICY

SALES

Commissioner

write

and

are

OF

to effectuate

necessary

FUTURE

to

FURTHER

after

the

WITH

date

allow

Order

this

Benefits agents

Mutual

individual

of

to

all

REINSURANCE

Benefit

reinsured

100%

enforce

may

Mutual

jurisdiction for

this

the

life

Order

insurance

provided

satisfaction

such

of

the

in

his

Commissioner

RETENTION

21 The

Commissioner

discretion

as

management

personnel

on

approval

this

upon

by

OF MANAGEMENT

may

be

Court

may

to

necessary

take

keep

such

Mutual

rehabilitation

the

the

return

date

steps

Benefits current

staff

of

this

subject

Order

and

to

it

is

CONTINUATION

22 Pending

the

Rehabilitator

provisions

the

Order

of

Mutual

and

to

the

shall

insurance

Show

Cause

OF

INDEMNICATION

date

return

continue

for

were

the

existing

those

the

of

persons

directors

Benefit

12

Order

to

Show

indemnification

who

as

officers

of

the

and

Cause

by-law

date

of

employees

ORDERED

FURTHER

interested

show

J.S.C at the Mercer

Levy

at/%OO a.m

not

shall

parties

the

on

be entered

the

containing

under

with

all

Honorable

the

1991

Paul

New

Jersey

why an Order

Commissioners power

of

other

should

provisions

following

all

the

and

Courthouse Trenon

County

.6Z1y ofd91

Rehabilitator

provided

defendant

before

cause

Continuing

as

the

that

the

and

powers

this Order

and

pursuant

to

Continuing

the

restraints

Approving

transfer

to

act

authority

statute

this

imposed

by

group

business

order

Benefits subsidiary

to Mutual

the

affidavits

Indemnification

Show

Cause

were

shall

Benefit

indemnification

from

years

expenses

arising

position

prior

rehabilitation

Mutual

the

the

the

date

the

l4A3-5

and

Executive

to

receive

Liability

forth

in

the

Order

of

the

date

officers

and

employees

as

period

of

of

be

entitled

exceed

period

not

to

Order

against

all

liabilities

of

the

of

date

their

holding

that

Mutual

with

the

of

Section

the

of

13

Mutual

Policy

and

into

provisions

of

three

such

ordered

provisions

to

any

is

the

Insurance

held

Benefit

incorporating

benefits

or having

to

Mutual

Benefit for

in accordance

Benefits bylaws

fully set

orders

rehabilitation

the

by reason

to

who

directors

by Mutual

as more

following

Persons

during

the

herewith and

submitted

Making

of

31

of

N.J.S.A

Benefits present

including

Company

Reimbursement

shall

not

be

amended

ii Retention

Of

Corporate

policy

Employment

of

positions

indicated

Commissioner

the

and

continued

in such

months

who

at

conditions

has

the

Mr

and

for

period

annual

rate

of

individuals

have

other

Hailer

of

to

up

twelve

12 months

forth

below

each

of

of

up

to

that

which

he

would

have

received

pursuant

the

Mutual

of

Directors

on June

year

of

two

service

service

as

and

an

Board

weeks

with

General

amount

office

base

the

Agent

equal

of

to

bonus

executive

salary

company

but

not

14

be

19

vice

be

up

to

to

be

$400000

exclusively

Subject

to

to

months

to

the

corporate

in monetary

equal

amount

resolution

of

i.e

for

--

1991

president

above

year

or

affiliate

including

fifty-two

52 weeks

any

26 weeks

of

or

or

for each

to exceed

twenty-six

agreed

aforesaid

the

of

and

to

agreed

termination

of

the

six

$500000

paid

sum

of

agrees

have

be

the

the

President

period

to

the

held

President

for

will

occupying

Vice

President

diem basis

on

the

Benefit

have

Bonus

discretion

Vice

officers

persons

who

Executive

as

resigned

Carlotti

period

set

Termination

Executive

Sondergeid

compensated

for

Rehabilitator

directs

Carlotti Senior

employed

employed

.which

Bull Executive Vice President

Hailer Jr Senior Vice President

Vice President

Budwick Executive

Senior

Vice President

McCaig

Mr

The

1991

Kates President

exclusively

respectively

And

at

as he

capacity

consultant

six

be

the

officers

will

20

March

by

Officers

corporate

Mr Kates

as

or terminated

following

Henry

Stephen

Edward

Donald

Robert

Charles

Donald

employed

dated

No. 7022-56-24

Policy

portion

the

of

authorized

base

for

salary

such

the

Sondergeld

otherwise

for

compensation

plan

annual

salary

the

base

Messrs

Carlotti Hailer

value

of

benefits

to

under

the

companys

unfunded

to

percent

an

To

amount

equal

receive

this

must be

conditions

following

incentive

any

for

monetary

entitled

be

to

regard

and

arrangement

compensation

without

individual

which

fifty

termination

and

would

they

deferred

50%

bonus

of

however

satisfied

officer

must continue

The

corporate

with

Mutual

Benefit

at the

employment

Commissioner

for

discretion of the

the

indicated

the

period

following

entry of the proposed Order

The

officer

shall not have

for cause

the

by

corporate

been

terminated

Commissioner and

That

acts

no

or

that

would

refusal

Section

It

the

Court

is

for

of

support

provided

copies

of

this

but

appropriate

FURTHER

ORDERED

to

Benefit

overnight

this

Order

and

Show

Cause

upon

of

mall

Kates

deferred

proofs

apply

to

in

the

Commissioner shall

the

are submitted

the

Cause

may

compensation

service

that

to

of

and

true

it is

conformed

Verified

Complaint

the

plaintiff

shall

be

made

upon

courier

within

two

days

of

the

of

this Order

or

Mutual

entry

it is

FURTHER

to

Show

companys

Henry

application

that

Order

that

unpaid

which

the

justify

earned

affidavits

of

31

been

found

of

the

individual

him pursuant

indemnify

of the by-laws

provided

supporting

by

to

further

$150000

amount

evidence

has

omissions

by

ORDERED

all other

that

service

creditors

15

of

notice

policyholders

subsidiaries

and

of

interested

form of

.the

Notice

be

shall

parties

which

accomplished

is appended

to

by

publishing

this Order

to

newspaper

of

the

date

of

this

Order

general

circulation

in

the

capital

city

of

each

Mutual

Benefit

does

business

well

as

in

the

Wall

The

York

Times The Star-Ledger

The

Times

of

Journal

and

The

New

Courier-Post

FURTHER

or

be

this

heard

on

the

Order

to

Show

accompanying

Attorney

brief

General

and

issues

and

state

that

be

to

any

considered

shall

Cause

this

counsel

person

file

Court

and

for

Mutual

on

who

comments be entertained

for written

objections

in

wishes

the

written

also

serve

Benefit

of

which

Street

Trenton

and

by

brIefs

16

is

this

Court

if

to object

return

date

of

objection

and

same

upon

the

later

than

not

/cJays before the return date of this Order

or

Cause

it is

ORDERED

with

as

in

Show

days

within

once

copy

No

this

objections

requirement

NOTICE

TO ALL POLICYHOLDERS

CREDITORS CLAIMANTS

SUBSIDIARIES

AND ALL

INTERESTED

PARTIES

REGARDING

MUTUAL

BENEFIT LIFE INSURANCE

COMPANY

OmR

On

the

Court

July 16

1991

of

New

Superior

entered

Jersey

Consent Order to Show Cause With Temporary

Restraints

In the Matter

of the Rehabilitation

of Mutual

Benefit

Life

Insurance

Company

Docket No C-91-00l09 against MUTUAL

BENEFIT

LIFE INSURANCE

COMPANY

MUTuAL BENEFIT

mutual

insurance

company having

principal

offices at 520 Broad Street Newark New Jersey

The

Order

to

Show

Cause

principally

provides

follows

as

The

New Jersey

Insurance

Commissioner

is appointed

as

who

is

immediately authorized

to

conduct

the

business of Mutual Benefit

and may appoint

Rehabilitator

Deputy

to perform these duties and functions

imposes temporary restraints

on policy

loans cash surrenders and other specific

of

categories

disbursements

authorizes

reinsurance

pre-arranged

for new

life

insurance business written by Mutual Benefit

authorizes

the

rehabilitator

to

Commissioner

as Rehabilitator

to

commence

measures subject

further court approval on the return date

to preserve the valuable

Benefit

group business of Mutual

but not limited tO the

including

transfer

of such

business

and

asset

reserves

to

corresponding

for the overall

separate subsidiary

benefit

of Mutual

creditors

and policyholders

continues

the indemnification

under

provisions

the

for officers

company

by-laws

directors

and

of

employees

Mutual

Benefit

the

pending

return

date

and imposes additional

interim relief to advance

the rehabilitation

process all as more

set

forth

in

particularly

the Order to Show Cause

The

Honorable

Paul

J.S.C has established

Levy

return date

at the Mercer

County Courthouse Trenton New

Jersey

at 900 a.m on the

1991

time the

day of

at which

defendant

and all other interested

parties shall show cause why an

Order should not be entered containing

the following

provisions

Rehabilitator

the Order to

Show

Cause

Continuing

Show

the

Continuing

with all of

Commissioners

and

Approving

Making

retention

senior

in

the

management

of

rehabilitation

as

to

act

and authority provided

powers

to

pursuant

statute

the

restraints

Cause

Benefits subsidiary

the State and

power

the

transfer

set forth

imposed

of the group

in supporting

by

the

as

under

Order to

business

to Mutual

affidavits

filed by

the following

orders to assure

the continued

discretion

of

the

of

certain

Rehabilitator

of

Mutual

Benefit

to

assist

in the

orderly

Mutual

Benefit

under

the

Rehabilitators

and to

obtain

rehabilitation proceedings

direction

the

consent

of

the

Board

to

the

retention of certain

Approving the

who

will remain employed with the

at

the

company

discretion

of the Rehabilitator

for up to twelve

months and who

will receive

certain

cÆmpensation and other benefits

as specified

in

June

prior

19 1991 resolution of- the Board

This

be

compensation will

that

the

due provided

officers

are

not

terminated

or cause and there is no evidence of conduct

that would

them from indemnification

disqualify

officers

Granting indemnification during the

rehabilitation

all liabilities

and

period

against

for

expenses

period of three years to the directors officers

and employees

at

Mutual Benefit arising by reason of those persons holding

or having

held any such position

that

Mutual

is ordered

prior to the date

into

rehabilitation

in

manner

consistent

with the

Mutuals

existing by-laws and consistent with N.J.S.A.14A3-5

POLICYHOLDERS

SUBSIDIARIES

CREDITORS

CLAIMANTS

AND OTHER

INTERESTED

PARTIES

who wish to object or be heard on the

issues to be considered

on the return date of the Order to Show

Cause

shall within

of the Order to Show

days from the date

Cause

file

written

objection and accompanying

brief with this

Court and also serve

same upon

Sharon

Ha1lnn Deputy

Attorney General

Richard

Justice

Hughes

Complex 01 117

Trenton New Jersey 08625 and

counsel

for defendant Samuel

Butler

cravath Swaine and Moore

Worldwide

Plaza 825

Eighth Avenue New Jersey 10019

No objections or comments

will be

entertained

by the Court if this requirement

for written objections

and briefs is not met

Esq

LAW

OFFICES

FREEDMAN LEvY KROLL SIM0NDs

WASHINGTON

SQUARE-

050 CONNECTICuT

WASHINGTON

202

AVEN

D.C.20036-5366

457-5100

GARY

COHEN

202457-5107

CABLE ATTORNEYS

TELECOPI ER 202-457-5151

August

23

1991

1940

1940

1940

1940

BY

HAND

Act/2a

Act/15a

Act/.5b

Act/Rule

2a-6

DELIVERY

Clifford

Kirsch Esq

Assistant Director

Office of Insurance

Products

Legal Compliance

Division

of Investment

Management

tJ.S

Securities and Exchange

Commission

450

5th Street N.W

Room 10167

Stop 10-6

D.C

20549

Washington

Re

Mutual Benefit Fund Benefit

Fund

File No 8112046 and No 236663

MBL Growth Fund Inc

Growth Fund

File No 8113593 and No 296199

MAP Government Fund Inc

MAP Fund

File No 8113548 and No 278975

The Specialty Managers Trust Managers

Trust

File No 8115629 and No 3323512

Mutual Benefit Variable Contract Account-7

File No 8113853 and No 286722

Markston Investment

Management

Markston

File No 80115894

Mutual Benefit Financial Service Company

File No 8018154 and No 815263

Directed

Services Inc

File No 80132675

and No 839104

VCA-7

FISCO

DSI

Dear

Mr Kirsch

We

are writing

to supplement

our letter to you dated August

to reflect

certain developments

since the appointment

of

Rehabilitator

for The Mutual

Benefit

Life

Insurance

Company

Mutual Benefit Life and to make certain additional points Our

letter requested on behalf of the abovenamed

companies that the

Commission staff furnish us with

letter stating that it will not

recommend

that the Commission take enforcement

action if Markston

1991

FREEDMAN

LEvy

KRQLL

SMoNDs

FISCO and DSI continue to perform under their respective

investment

and management

agreements including service

agreements

advisory

and principal underwriting agreements including distributors and

sales agreements without

further interestholder

vote under the

unusual

circumstances

described

in

our letter

We

are

highly

to conversations

with you and

supplementing

our letter pursuant

your staff

The Superior Court of New Jersey on August

1991 entered

Order

Rehabilitators

Continuing

Appointment

Continuing

Other

Relief

Restraints and Granting

the New Order

copy

of the New

Order permits payment

from

enclosed

Paragraph

and

withdrawal

invested

in

variable

life

insurance

of

funds

policies as well as variable annuities that have been maintained

and

other assets

and

liabilities

of

separately

apart from the

Mutual Benefit Life

The New Order therefore confirms the fact

as

noted

in

footnote

33

of

our

variable

life

that

letter

insurance policyholders

continue to have the right to redeem

an

2c

There

have

been

certain

in the

officers

of

Mutual

changes

Benefit Life as set out in footnote

17 of our letter

since we

submitted our letter

Mr Carlotti has resigned as President and

Chief Executive

to

Officer but continues to serve as consultant

Mutual Benefit Life

Mr Haller has resigned as Executive Vice

President but continues to perform the duties of such office in

the capacity

of consultant

to Mutual Benefit Life

Mr McCaig was

referred

to

in

the

Order

Executive

Vice

as

incorrectly

original

President

Mr McCaig has resigned as Senior Vice President and

Senior Administrative

Officer

Consistent with paragraph

of the

New Order Mutual Benefit Life has contracted

to sell what the New

Order refers to as its Group Business

Mr Bull who is in

of

the

is

to

become

associated with

Business

charge

Group

expected

the buyer upon consummation

of the sale

Our letter in footnote

15 states that subsequent changes in

circumstances

Benefit

Life

its

of

Mutual

or

subsidiaries

to

additional

action

court

or

pursuant

otherwise may eventually

result in

in actual

control

or management

We hereby

change

delete this footnote

from our letter

We understand

that any noaction

letter

issued

with

staff will state consistent

by the

traditional

staff

is

that

the

no-action

practice

position

conditioned

in our letter

on

facts and circumstances

as stated

As the staff is aware the rehabilitation of Mutual Benefit Life

is

and different

facts

and

circumstances

continuing

process

would

need

to be analyzed

to determine whether

they result in

noaction

in

actual

control

or

to

which

the

change

management

not

position may

apply

the

FREEDMAN

LEvY

SMONDS

KR0LL

in

we

submit that

the

staffs no-action

letter

with Siebel

Inc

dated

Capital Management

1991 further supports the textual statement accompanying

July

Our rationale is as follows

footnote

16 of our letter

First

the investment adviser SCMI had filed for Chapter 11 bankruptcy

in August 1990 as debtor

in possession

There is no recognition

in

in the

letter or staff noaction letter of

change

incoming

control

issue triggered

courts assumption of

by the bankruptcy

fact

could

have

the

adviser

or

that

the

over

jurisdiction

caused

of

the

investment

advisory

an

assignment

effectively

in October

1990 SCMIs principal investment

agreements

Second

and

SCMI

made representations that the

abruptly

resigned

manager

caused by the Chapter 11 filing made

instability of its operations

it

of

another

investment

see the

incapable

providing

manager

Still there is no indication that this further

incoming letter

in control

fact could have constituted

or an assignment

change

no-action

Finally the staff took

position with regard to SCMIs

entering into subinvestment advisory agreements pursuant to Rule

15a4 based on an analysis that there was no termination of the

SCMI agreements see SEC noaction letter

Finally

SCMI

connection

Consistent with the last paragraph

that you are informing the

we understand

Counsel of our letter

Please

firm if you

call me Diane

have any question

Ambler

or wish

Ver

Gary

GOC/cjc

Enclosures

New Order

Six copies

cc

of

letter

Heidi Stam Esq

Michael

Wible

Esq

on

page

or Richard

to discuss

trul

23

of

our

Divisions Office

ours

Cohen

letter

of

Chief

Choi at this

this matter

iLIi11

i34

THLI

EFIT

tiI_ITLIiL

-L-L2

P.03

LIF-E

t57

Si

P.3/i2

FILED

U6.7

ROBERT

DEL TUFO

of

General

Attorney

R.3 Hughes

CN 117

609

New

Jersey

Complex

Justice

New

Trenton

ftI

Jersey

0862

292-1506

for Plaintiff

Attorney

COLE SCHOTZ

BERNSTEIN

MEISEL

FORNAN

Professional

Corporation

25 Main Street

New Jersey 07602-0800

Hackensack

201

4893000

Special

Counsel

for Plaintiff