Exhibit 8(b)
FORM OF
ADMINISTRATIVE AND SHAREHOLDER SERVICES AGREEMENT
Between
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
And
MASSMUTUAL INSTITUTIONAL FUNDS
(As to the MassMutual Indexed Equity Fund)
ADMINISTRATIVE AND SHAREHOLDER SERVICES AGREEMENT
-------------------------------------------------
This ADMINISTRATIVE AND SHAREHOLDER SERVICES AGREEMENT (the "Agreement"),
dated as of this 6th day of February, 1998 (the "Effective Date") is by and
between MassMutual Institutional Funds (the "Trust") on behalf of MassMutual
Indexed Equity Fund (the "Fund") and Massachusetts Mutual Life Insurance Company
(the "Manager").
WHEREAS, The Fund is a diversified series of the Trust, a Massachusetts
business trust which is an open--end, management investment company registered
as such with the Securities and Exchange Commission (the "Commission") pursuant
to the Investment Company Act of 1940, as amended (the "1940 Act"), and
WHEREAS, the Trust, on behalf of the Fund, and the Manager wish to enter
into this Agreement whereby the Manager will provide, or cause to be provided,
administrative and shareholder services for the Fund and assume certain expenses
of the Fund.
NOW, THEREFORE, in consideration of the covenants and mutual promises of
the parties made to each other, it is hereby covenanted and agreed as follows:
ARTICLE I: ADMINISTRATIVE AND SHAREHOLDER SERVICES
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A. General Responsibilities. Subject to the exceptions set forth in Sub-
Section C hereof and subject to the direction and control of the Board of
Trustees of the Trust, the Manager will provide, or cause to be provided, all
services required for the administration of the Trust and the Fund, including
fund accounting, shareholder servicing, and transfer agency services.
B. Specific Responsibilities. Without limiting the responsibilities of the
Manager, the Manager will:
1. Maintain office facilities (which may be in the offices of the
Manager or a corporate affiliate but shall be in such location as the Trust
reasonably determines).
2. Furnish statistical and research data, clerical services and
stationery and office supplies.
3. Compile data for, prepare for execution by the Fund and file all the
Fund's federal and state tax returns and required tax filings other than
those required by this Agreement to be made by the Fund's custodian and
transfer agent.
4. Prepare compliance filings pursuant to state securities laws with the
advice of the Trust's counsel.
5. Prepare the Trust's Annual and Semi-Annual Reports to Shareholders
and amendments to its Registration Statements (on Form N-1A or any
replacement therefor).
6. Compile data for, prepare and file timely Notices to the SEC required
pursuant to Rule 24f-2 under the 1940 Act.
7. Determine the daily pricing of the portfolio securities and
computation of the net asset value and the net income of Fund in accordance
with the Prospectus, resolutions of the Trust's Board of Trustees, and the
procedures set forth in EXHIBIT A: NET ASSET VALUE CALCULATIONS.
8. Keep and maintain the financial accounts and records of the Fund and
provide the Trust with certain reports, as needed or requested by the Fund.
9. Provide officers for the Trust as requested by the Trust's Board of
Trustees.
10. Perform fund accounting services for the Fund as set forth in EXHIBIT
B: FUND ACCOUNTING FUNCTIONS.
11. Generally assist in all aspects of the operations of the Fund.
C. Excepted Responsibilities. The Manager shall not perform the following
services pursuant to this Agreement:
1. Those performed by the custodian for the Trust under the Custodian
Agreement between the Trust and Investors Bank & Trust Company or any
successor custodian (the "Bank");
2. Those performed by the distributor(s) of the Trust's shares;
3. Those provided by the Trust's independent legal counsel;
4. Those performed by the independent public accountants for the Trust;
5. Those performed by the Fund's investment manager;
6. Those provided by the Trust's independent trustees, and
7. Those provided by Investors Bank & Trust Company pursuant to a
Transfer Agency Agreement.
D. Sub-contract Rights. The Manager may in its discretion (subject only to
approval by the Trust's Board of Trustees) delegate or subcontract some or all
of the Manager's duties, but shall remain ultimately responsible for the
provision of such services. The Manager shall be responsible for payment of all
compensation to any person or entity that Manager delegates any duties
hereunder.
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ARTICLE II: EXPENSES
---------------------
A. Expenses. The Manager shall assume all expenses of the Trust and the Fund,
including the Manager's reasonable out-of-pocket disbursements; provided,
however, that the Fund or the Trust shall pay:
1. Taxes and corporate fees payable to governmental agencies;
2. Brokerage commissions (which may be higher than other brokers would
charge if paid to a broker which provides brokerage and research services
to the Manager for use in providing investment advice and management to the
Fund and other accounts over which the Manager exercises investment
discretion) and other capital items payable in connection with the purchase
or sale of the Fund's investments (The words "brokerage and research
services" shall have the meaning given in the Securities Exchange Act of
1934 and the Rules and Regulations thereunder.);
3. Interest on account of any borrowing by the Fund;
4. Fees and expenses of the Trust's Trustees who are not interested
persons (as defined in the 0000 Xxx) of the Manager or of the Trust;
5. Fees payable to the Trust's certified independent public accountants;
6. Fees paid to the Trust's independent legal counsel;
7. Fees paid to the Fund's custodian;
8. Fees paid to the Fund's Investment Manager;
9. Payments due pursuant to any 12b-1 Plan adopted by the Trust and
applicable to the Fund; and
10. Fees required under any license agreement relating to the Fund's
ability to use certain trademarks relating to the S&P 500 Index.
ARTICLE III: COMPENSATION
--------------------------
The Manager's Compensation. For the services to be rendered and the facilities
to be furnished by the Manager as provided for in this Agreement, the Trust will
compensate the Manager as the Trust and the Manager may from time to time agree.
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ARTICLE IV: STANDARD OF CARE
-----------------------------
A. Standard of Care. The Manager shall use reasonable care in performing its
duties hereunder. In the performance of such duties, the Manager its directors,
officers, employees, and agents, successors and assigns will be protected and
will not be liable, and will be indemnified and held harmless by the Trust for
any error of judgement, mistake of law, or any other loss, claim, damages,
liabilities, or expenses arising by reason of it acting hereunder, by the Trust
except in the case of the negligence, willful misconduct, bad faith, reckless
disregard of duties or obligations hereunder, including knowing violations of
law, or fraud of the Manager, or of its officers, employees, or agents, except
as otherwise set forth in this Article IV. Notwithstanding anything herein to
the contrary, the Manager shall have no discretion over the Trust's assets or
choice of investments and shall not be held liable hereunder for any losses
suffered by the Fund.
B. Legal Advice. On issues that are legal in nature, the Manager will be
entitled to receive and act upon the advice of independent legal counsel of its
own selection, provided such counsel is chosen with reasonable care and which
can be counsel for the Trust, and will be without liability for any action taken
or thing done or omitted to be done in accordance with this Agreement in good
faith conformity with such advice. Except as otherwise agreed to by the Trust,
the Manager shall pay the fees and expenses of such counsel, unless such counsel
is the Trust's counsel. On issues that are related to financial accounting
matters, the Manager will be entitled to receive and act upon the advice of the
Trust's independent public accountants, provided that the Manager promptly
notifies the Trust that it has sought such advice and discloses the nature of
the matter. Except as otherwise agreed to by the parties, the Trust shall bear
the expenses and costs of obtaining advice from its independent public
accountants, if such advice is sought pursuant to this subsection B of Article
IV.
C. Good Faith Reliance. The Manager will be protected and not be liable, and
will be indemnified and held harmless for any action taken or omitted to be
taken by it in reliance upon any document, certificate or instrument which it
reasonably believes to be genuine and to be signed or presented by the proper
person or persons.
D. Damages. Notwithstanding anything in this Agreement to the contrary, in
no event shall the Manager or the Trust be liable to the other, or to any third
party, for special, punitive or consequential damages arising, directly or
indirectly from this Agreement, even if said party has been advised by the other
party of the possibility of such damages.
E. Acts of God. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God,
interruption of electrical power or other utilities, equipment or transmission
failure or damage reasonably beyond its control, or other causes reasonably
beyond its control, such party shall not be liable to the other for any damages
resulting from such failure to perform or otherwise from such causes. The
Manager and the Trust shall notify each other as soon as reasonably possible
following the occurrence of an event described in this subsection.
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ARTICLE V: EFFECTIVE DATE, TERMINATION AND AMENDMENT
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A. Effective Date. This Agreement will become effective on the Effective Date
and, unless sooner terminated as provided herein, will continue for an initial
term of one-year from the Effective Date and thereafter shall continue for
successive one year periods; provided however, that such continuance shall be
specifically approved at least annually by (i) the Board of Trustees of the
Trust, or (ii) by vote of a majority of the outstanding shares of the Fund (as
defined in the 1940 Act), provided however, that in either event the continuance
is also approved at least annually by a majority of the Trust's Trustees who are
not parties to this Agreement or interested persons (as defined in the 1940
Act)(other than a Trustees of the Trust) of the Manager or of the Trust by vote
cast in person at a meeting called for the purpose of voting on such approval.
B. Termination. Anything to the contrary herein notwithstanding, (1) this
Agreement may at any time be terminated by the Trust on 90 days' written notice
to the Manager without the payment of any penalty either by the Board of
Trustees of the Trust or by vote of majority of the outstanding shares of the
Fund (as defined in the 1940 Act); (2) this Agreement shall immediately
terminate in the event of its assignment (within the meaning of the 0000 Xxx);
and (3) this Agreement may be terminated by the Manager on 90 days' written
notice to the Trust without the payment of any penalty. Any notice under this
Agreement shall be given in writing, addressed and delivered, or mailed
postpaid, to the other party at the principal office of such party.
C. Amendment. This Agreement may be amended at any time by mutual written
consent of the parties, provided that such consent on the part of the Trust
shall have been approved at a meeting by the vote of a majority of the Trustees
of the Trust and by a majority of the Trustees of the Trust who are not parties
to this Agreement or interested persons (within the meaning of the 0000 Xxx) of
the Trust or of the Manager by vote cast in person at a meeting called for the
purpose of acting on such amendment.
ARTICLE VI: MISCELLANEOUS
--------------------------
A. Services Not Exclusive. The services of the Manager to the Trust and the
Fund under this Agreement are not exclusive and the Manager shall be free to
render similar services to others.
B. Use of Name by the Trust. The Trust recognizes the Manager's control of
the name "MassMutual" and agrees that its right to use this name is non-
exclusive and can be terminated by the Manager at any time. The use of such name
will automatically be terminated if at any time the Manager, a subsidiary or an
affiliate of the Manager ceases to be investment manager for the Fund, provided,
however, that the Fund's failure to have MassMutual or a subsidiary or an
affiliate of MassMutual be the investment manager for the Fund shall not result
in the automatic termination of its use of the name so long as (i) the Fund
invests all of its assets in another investment company, rather than in a
portfolio of securities, and (ii) MassMutual or a subsidiary
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or an affilaite of MassMutual is the Manager.
C. Interested and Affiliated Persons. It is understood that members of the
Board of Trustees, officers, employees or agents of the Trust or the Fund may
also be directors, officers, employees or agents of the Manager, and Sub-
Advisers, and that the Manager and Sub-Advisers, and their directors, officers,
employees or agents may be interested in the Fund as shareholders or otherwise.
D. Records and Confidentiality. All records pertaining to the operation and
administration of the Trust and the Fund (whether prepared by the Manager or
supplied to the Manager by the Trust or the Fund) are the property and subject
to the control of the Trust. In the event of the termination of this Agreement,
all such records in the possession of the Manager shall be promptly turned over
to the Trust free from any claim or retention of rights. All such records shall
be deemed to be confidential in nature and the Manager shall not disclose or use
any records or information obtained pursuant to this Agreement in any manner
whatsoever except as expressly authorized by the Trust or as required by federal
or state regulatory authorities. The Manager shall submit to all regulatory and
administrative bodies having jurisdiction over the operations of the Manager or
the Trust, present or future, any information, reports or other material
obtained pursuant to this Agreement which any such body may request or require
pursuant to applicable laws or regulations.
E. Disclaimer of Liability. A copy of the Agreement and Declaration of Trust
of the Trust is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Board of Trustees of the Trust as Trustees and not individually and that the
obligations of this instrument are not binding upon any of the Trustees or
shareholders individually but are binding upon the assets and property of the
Trust; provided, however, that the Agreement and Declaration of Trust of the
Trust provides that the assets of a particular series of the Trust shall under
no circumstances be charged with liabilities attributable to any other series of
the Trust and that all persons extending credit to, or contracting with or
having any claim against a particular series of the Trust, shall look only to
the assets of that particular series for payment of such credit, contract or
claim.
F. Notices. Any notice or other instrument in writing authorized or required
by this Agreement to be given to either party hereto will be sufficiently given
if addressed to such party and mailed or delivered to it at its office at the
address set forth below; namely:
(a) In the case of notices sent to the Trust to:
MassMutual Institutional Trusts
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Vice President & Secretary
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(b) In the case of notices sent to the Manager to:
Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Executive Vice President
In the case of notices sent to either party, a copy to the Bank to:
Investors Bank & Trust Company
X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxx Nesvett
or at such other place as such party may from time to time designate in writing.
I. Parties. This Agreement will be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that this Agreement will not be assignable by the Trust
without the written consent of the Manager or by the Manager without the written
consent of the Trust, authorized and approved by its Board; and provided further
that termination proceedings pursuant to Article V, Section B hereof will not be
deemed to be an assignment within the meaning of this provision.
J. Governing Law. This Agreement and all performance hereunder will be
governed by the laws of the Commonwealth of Massachusetts.
K. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Administrative and
Shareholder Services Agreement to be executed on the day and year first above
written.
MASSMUTUAL INSTITUTIONAL FUNDS
on behalf of MassMutual Indexed Equity Fund
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By:
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Xxxxxx X. Xxxxx
President
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By:
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Xxxx X. Xxxxxx
Executive Vice President
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EXHIBIT A: NET ASSET VALUE CALCULATIONS
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MassMutual shall compute and, unless otherwise directed by the Board, determine
as of the close of business on the New York Stock Exchange on each day on which
said Exchange is open for unrestricted trading and as of such other hours, if
any, as may be authorized by the Board the net asset value and the public
offering price of a share of capital stock of the Trust, such determination to
be made in accordance with the provisions of the Articles and By-laws of the
Trust and Prospectus and Statement of Additional Information relating to the
Trust, as they may from time to time be amended, and any applicable resolutions
of the Board at the time in force and applicable and promptly to notify the
Trust, the proper exchange and the NASD or such other persons as the Trust may
request of the results of such computation and determination.
In computing the net asset value hereunder, MassMutual may rely in good faith
upon information furnished to it by any Authorized Person in respect of `(i) the
manner of accrual of the liabilities of the Trust and in respect of liabilities
of the Trust not appearing on its books of account kept by the Bank, (ii)
reserves, if any, authorized by the Board or that no such reserves have been
authorized, (iii) the source of the quotations to be used in computing the net
asset value, (iv) the value to be assigned to any security for which no price
quotations are available, and (v) the method of computation of the public
offering price on the basis of the net asset value of the shares, and the Bank
shall not be responsible for any loss occasioned by such reliance or for any
good faith reliance on any quotations received from a source pursuant to (iii)
above.
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EXHIBIT B: FUND ACCOUNTING FUNCTIONS
-------------------------------------
MassMutual shall have the following responsibilities pursuant to (S)10 of
Article I(B):
1. Maintain the books and records of the Fund pursuant to applicable rules
of the Investment Company Act of 1940, including the following:
(a) Journals containing an itemized daily record in detail of all
purchases and sales of securities, all receipts and disbursements of cash
and all other debits and credits, as required;
(b) General and auxiliary ledgers reflecting all asset, liability,
reserve, capital, income and expense accounts as required;
(c) A monthly trial balance of all ledger accounts as required.
2. Daily pricing of all portfolio securities using securities valuations or
other methods as may be approved by the Fund's Trustees from time to time.
3. Daily posting of all income and expense accruals and reconciliation of
general ledger balances and total shares outstanding.
4. Computation of the daily net asset value as of the close of business of
the New York Stock Exchange on each day on which the Exchange is open for
business (See Exhibit A: Net Asset Value Calculations).
5. Reporting of the daily net asset value and dividend distributions to
transfer agent, Fund, management, NASDAQ, and others as requested by 5:30
p.m. each day.
6. Calculation of dividends and capital gain distributions.
7. Routine monitoring of the Fund's investments and providing prompt notice
of any violations of the diversification requirements, investment
restrictions or investment policies.
8. Calculation of yields and returns pursuant to S.E.C. formulas, and any
other performance calculations as required.
9. Providing Fund prices and performance numbers to industry reporting
services.
10. Preparing reports on expense limitations and net asset value analysis, as
requested.
11. Maintain historical records of all Fund net asset values and dividend
distributions.
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12. Preparing Blue Sky filings.
13. Preparing audited annual and unaudited semi-annual reports including
statement of investments, financial statements and footnotes.
14. Producing documents and responding to inquiries during S.E.C. audit, IRS
audit and others as required.
15. Providing the portfolio managers with cash availability based on security
settlements, shareholder activity, maturities, and income collections for
each fund by 8:30 a.m. each valuation day.
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