ACCOUNTING SERVICES AGREEMENT
THIS ACCOUNTING SERVICES AGREEMENT is made as of April 28, 1997 (the
"Agreement"), by and between MML Series Investment Fund, a Massachusetts
business trust (the "Company") on behalf of its series, MML Equity Index Fund
(the "Fund"), Massachusetts Mutual Life Insurance Company ("MassMutual") and
First Data Investor Services Group, Inc., a Massachusetts corporation ("FDISG").
WHEREAS, the Company is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Company wishes to retain FDISG to provide certain fund
accounting services with respect to the Fund and FDISG is willing to furnish
such services;
WITNESSETH:
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Company hereby appoints FDISG to provide certain
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fund accounting and financial administrative services required by the Company
for the Fund for the period and on the terms set forth in this Agreement. FDISG
accepts such appointment and agrees to furnish the services herein set forth in
return for the compensation as provided in Section 4 of this Agreement. In the
event that the Company decides to retain FDISG to act as fund accountant
hereunder with respect to one or more portfolios other than the Funds, the
Company shall notify FDISG in writing. If FDISG is willing to render such
services, it shall notify the Company in writing whereupon such portfolio shall
become a Fund hereunder.
2. Delivery of Documents. The Company has furnished FDISG with copies
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properly certified or authenticated of each of the following:
(a) Resolutions of the Company's Board of Trustees authorizing
FDISG to provide certain fund accounting services to the Company and approving
this Agreement;
(b) The Company's Declaration of Trust (the "Articles") filed with
the Commonwealth of Massachusetts and all amendments thereto;
(c) The Company's By-Laws and all amendments thereto (the "By-
Laws");
(d) The Investment Advisory Agreement between MassMutual (the
"Adviser") and the Company (the "Advisory Agreement");
(e) The Custody Agreement between Boston Safe Deposit and Trust
Company (the "Custodian") and the Company (the "Custody Agreement");
(f) Post-Effective Amendment No. 35 under the Securities Act of
1933 and Amendment No. 20 under the Investment Company Act of 1940 (the "1940
Act") to the
Company's Registration Statement on Form N-1A (the "Registration Statement")
under the Securities Act of 1933 and under the 1940 Act (File Nos.2-39334 and
811-2224), as filed with the Securities and Exchange Commission (the "SEC") on
February 14, 1997, relating to shares of beneficial interest of the Fund (the
"Shares"), and all amendments thereto; and
(g) The Fund's most recent prospectus and statement of additional
information and all amendments and supplements thereto (collectively, the
"Prospectuses").
The Company will furnish FDISG from time to time with copies, properly
certified or authenticated, of all amendments of or supplements to the
foregoing, if any. Furthermore, the Company will provide FDISG with any other
documents that FDISG may reasonably request and will notify FDISG as soon as
possible of any matter materially affecting the performance by FDISG of its
services under this Agreement.
3. Services and Duties. Subject to the supervision and control of the
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Company, FDISG undertakes to provide the services described in Schedule C to
this Agreement, including but not limited to the following specific services:
(a) Accounting and bookkeeping services (including the maintenance
of such accounts, books and records of the Company as may be required by Section
31(a) of the 1940 Act and the rules thereunder);
(b) Internal auditing;
(c) Valuing the assets of each Fund and calculating the net asset
value of the shares of the Fund consistent with the Registration Statement at
the close of trading on the New York Stock Exchange ("NYSE") on each day on
which the NYSE is open for trading, and at such other times as the Board of
Directors may reasonably request;
(d) Accumulating information for and, subject to approval by the
Company's Treasurer, preparing reports to the Company's shareholders of record
and the SEC including, but not necessarily limited to, Annual Reports and Semi-
Annual Reports on Form N-SAR;
(e) Assisting the Adviser, at the Adviser's request, in monitoring
and developing compliance procedures for the Company which will include, among
other matters, procedures to assist the Adviser in monitoring compliance with
each Fund's investment objective, policies, restrictions, tax matters and
applicable laws and regulations; and
(f) Preparing and furnishing the Company (at the Company's request)
with performance information (including yield and total return information)
calculated in accordance with applicable U.S. securities laws and reporting to
external databases such information as may reasonably be requested.
In performing its duties under this Agreement, FDISG: (a) will act in
accordance with the Articles, By-Laws, Prospectuses and with the instructions
and directions of the Company and will conform to and comply with the
requirements of the 1940 Act and all other applicable Federal or state laws and
regulations; and (b) will consult with legal counsel to the Company, as
necessary
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and appropriate. Furthermore, FDISG shall not have or be required to have any
authority to supervise the investment or reinvestment of the securities or other
properties which comprise the assets of the Company or any of its Funds and
shall not provide any investment advisory services to the Company or any of its
Funds.
4. Compensation and Allocation of Expenses.
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(a) For the services to be rendered, the facilities to be furnished
and the payments to be made by FDISG, as provided for in this Agreement,
MassMutual, on behalf of the Fund, will pay FDISG on the first business day of
each month a fee for the previous month as set forth in the Fee Schedule
attached hereto as Schedule A. For the purposes of calculating the fees
described herein, the Fund's average daily net assets will be deemed to be the
average daily value of the Fund's total assets minus the sum of the Fund's
liabilities (excluding the aggregate liquidation preference on the outstanding
shares of the Fund's auction rate preferred stock and accumulated dividends, if
any, thereon). Fees for the period from the date the Registration Statement is
declared effective by the SEC to the end of the month during which the
Registration Statement is declared effective shall be prorated according to the
proportion that such period bears to the full monthly period.
(b) MassMutual shall compensate FDISG for its services rendered
pursuant to this Agreement in accordance with the fees set forth above. Such
fees do not include out-of-pocket disbursements of FDISG for which FDISG shall
be entitled to xxxx separately. Reasonable out-of-pocket disbursements shall
include, but shall not be limited to, the items specified in Schedule B annexed
hereto and incorporated herein. Schedule B may be modified by FDISG upon not
less than thirty days' prior written notice to MassMutual.
(c) FDISG shall not be required to pay any of the following
expenses incurred by the Company: membership dues in the Investment Company
Institute or any similar organization; transfer agency expenses; investment
advisory expenses; costs of printing and mailing stock certificates,
prospectuses, reports and notices; interest on borrowed money; brokerage
commissions; taxes and fees payable to Federal, state and other governmental
agencies; fees of Trustees of the Company who are not affiliated with FDISG;
outside auditing expenses; outside legal expenses; or other expenses not
specified in this Section 4 which may be properly payable by the Company.
(d) FDISG will xxxx MassMutual as soon as practicable after the end
of each calendar month for out-of-pocket disbursements, and said xxxxxxxx will
be detailed in accordance with this Section and Schedule B. MassMutual will pay
to FDISG the amount of such billing within 30 days of such billing. FDISG may
charge a service fee equal to the lesser of (i) one and one half percent (1-
1/2%) per month or (ii) the highest interest rate legally permitted on any fees
not paid within 30 days of receipt of invoice.
(e) Upon any termination of this Agreement before the end of any
month, the fee for such period shall be prorated according to the proportion
which such period bears to the full month period. For purposes of determining
fees payable to FDISG, the value of each Fund's net assets shall be computed at
the time and in the manner specified in the most recent Prospectuses.
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(f) The Company acknowledges that the fees that FDISG charges
MassMutual under this Agreement reflect the allocation of risk between the
parties, including the limitations on liability in Section 5. Modifying the
allocation of risk from what is stated here would affect the fees that FDISG
charges, and in consideration of those fees, the Company agrees to the stated
allocation of risk.
(g) FDISG will from time to time employ or associate itself with
such person or persons as FDISG may believe to be particularly suited to assist
it in performing services under this Agreement. Such person or persons may be
officers and employees who are employed by both FDISG and the Company. The
compensation of such person or persons shall be paid by FDISG and no obligation
shall be incurred on behalf of the Company in such respect.
5. Limitation of Liability
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(a) FDISG, its directors, officers, employees, shareholders and
agents shall not be liable for any error of judgment or mistake of law or for
any loss suffered by the Company or a Fund in connection with the performance of
this Agreement, except a loss resulting from willful misfeasance, bad faith, or
negligence on the part of FDISG in the performance of its obligations and duties
under this Agreement.
(b) Notwithstanding any provision in this Agreement to the
contrary, FDISG's cumulative liability (to the Company) for all losses, claims,
suits, controversies, breaches, or damages for any cause whatsoever (including
but not limited to those arising out of or related to this Agreement) and
regardless of the form of action or legal theory shall not exceed $1,000,000;
provided, however, that the above-referenced cap shall not apply to any losses
resulting from gross negligence on the part of FDISG in the performance of its
obligations under this Agreement.
(c) Each party shall have the duty to mitigate damages for which
the other party may become responsible.
(d) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN
NO EVENT SHALL FDISG, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT,
CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS,
EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES,
EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF
WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Indemnification.
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(a) The Company shall indemnify and hold FDISG, its directors,
officers, employees, shareholders and agents harmless from and against any and
all claims, costs, expenses (including reasonable attorneys' fees), losses,
damages, charges, payments and liabilities of any sort or kind which may be
asserted against FDISG or for which FDISG may be held to be liable in
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connection with this Agreement or FDISG's performance hereunder (a "Claim"),
unless such Claim resulted from a negligent act or omission to act or bad faith
by FDISG in the performance of its duties hereunder.
(b) FDISG shall indemnify and hold the Company and the Fund and
each of its trustees, officers, employees, shareholders and agents harmless from
and against any and all Claims; provided that such Claim resulted from a
negligent act or omission to act or bad faith by FDISG in the performance of its
duties hereunder.
(c) In any case in which either party (the "Indemnifying Party")
may be asked to indemnify or hold the other party (the "Indemnified Party")
harmless, the Indemnified Party will notify the Indemnifying Party promptly
after identifying any situation which it believes presents or appears likely to
present a claim for indemnification against the Indemnifying Party, although the
failure to do so shall not prevent recovery by the Indemnified Party, and shall
keep the Indemnifying Party advised with respect to all developments concerning
such situation. The Indemnifying Party shall have the option to defend the
Indemnified Party against any claim which may be the subject of this
indemnification, and, in the event that the Indemnifying Party so elects, such
defense shall be conducted by counsel chosen by the Indemnifying Party and
satisfactory to the Indemnified Party, and thereupon the Indemnifying Party
shall take over complete defense of the claim and the Indemnified Party shall
sustain no further legal or other expenses in respect of such claim. The
Indemnified Party will not confess any claim or make any compromise in any case
in which the Indemnifying Party will be asked to provide indemnification, except
with the Indemnifying Party's prior written consent. The obligations of the
parties hereto under this Section 6 shall survive the termination of this
Agreement.
7. Termination of Agreement.
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(a) This Agreement shall be effective on the date first written
above and shall continue for a period of three (3) years (the "Initial Term"),
unless earlier terminated pursuant to the terms of this Agreement. Thereafter,
this Agreement shall automatically be renewed for successive terms of one (1)
year ("Renewal Terms") each.
(b) Either party may terminate this Agreement at the end of the
Initial Term or at the end of any subsequent Renewal Term upon not than less
than ninety (90) days or more than one hundred-eighty (180) days prior written
notice to the other party. The Company shall have the right to terminate this
Agreement upon the dissolution of the Company or the Fund upon not less than
ninety (90) days' prior written notice to FDISG of its intent to effect such
dissolution.
(c) In the event a termination notice is given by the Company, all
expenses associated with movement of records and materials and conversion
thereof will be borne by the Company.
(d) If a party hereto is guilty of a material failure to perform
its duties and obligations hereunder (a "Defaulting Party") resulting in a
material loss to the other party, such other party (the "Non-Defaulting Party")
may give written notice thereof to the Defaulting Party, and if such material
breach shall not have been remedied within thirty (30) days after such written
notice is given, then the Non-Defaulting Party may terminate this Agreement by
giving thirty (30)
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days written notice of such termination to the Defaulting Party. If FDISG is the
Non-Defaulting Party, its termination of this Agreement shall not constitute a
waiver of any other rights or remedies of FDISG with respect to services
performed prior to such termination or rights of FDISG to be reimbursed for out-
of-pocket expenses. In all cases, termination by the Non-Defaulting Party shall
not constitute a waiver by the Non-Defaulting Party of any other rights it might
have under this Agreement or otherwise against the Defaulting Party.
8. Modifications and Waivers. No change, termination, modification, or
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waiver of any term or condition of the Agreement shall be valid unless in
writing signed by each party. No such writing shall be effective as against
FDISG unless said writing is executed by a Senior Vice President, Executive Vice
President or President of FDISG. A party's waiver of a breach of any term or
condition in the Agreement shall not be deemed a waiver of any subsequent breach
of the same or another term or condition.
9. No Presumption Against Drafter. FDISG and the Company have jointly
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participated in the negotiation and drafting of this Agreement. The Agreement
shall be construed as if drafted jointly by the Company and FDISG, and no
presumptions arise favoring any party by virtue of the authorship of any
provision of this Agreement.
10. Publicity. Neither FDISG nor the Company shall release or publish
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news releases, public announcements, advertising or other publicity relating to
this Agreement or to the transactions contemplated by it without prior review
and written approval of the other party; provided, however, that either party
may make such disclosures as are required by legal, accounting or regulatory
requirements after making reasonable efforts in the circumstances to consult in
advance with the other party.
11. Severability. The parties intend every provision of this Agreement
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to be severable. If a court of competent jurisdiction determines that any term
or provision is illegal or invalid for any reason, the illegality or invalidity
shall not affect the validity of the remainder of this Agreement. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties. Without limiting the generality of this
paragraph, if a court determines that any remedy stated in this Agreement has
failed of its essential purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion of damages, shall remain
fully effective.
12. Miscellaneous.
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(a) Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Company or FDISG shall be sufficiently
given if addressed to that party and received by it at its office set forth
below or at such other place as it may from time to time designate in writing.
To the Company:
MML Series Investment Fund
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
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To MassMutual:
Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Hamline X. Xxxxxx
To FDISG:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to FDISG's General Counsel
(b) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns and
is not intended to confer upon any other person any rights or remedies
hereunder. This Agreement may not be assigned or otherwise transferred by either
party hereto, without the prior written consent of the other party, which
consent shall not be unreasonably withheld; provided, however, that FDISG may,
in its sole discretion, assign all its right, title and interest in this
Agreement to an affiliate, parent or subsidiary, or to the purchaser of
substantially all of its business. FDISG may engage subcontractors to perform
any of the obligations contained in this Agreement to be performed by FDISG;
provided, however, that FDISG shall not engage subcontractors to perform
substantially all of its obligations contained in this Agreement to be performed
by FDISG without the prior written consent of the Company which consent shall
not be unreasonably withheld. FDISG shall be as responsible to the Company for
the acts and omissions of any subcontractors as it is for its own acts and
omissions under this Agreement.
(c) The laws of the Commonwealth of Massachusetts, excluding the
laws on conflicts of laws, shall govern the interpretation, validity, and
enforcement of this Agreement. All actions arising from or related to this
Agreement shall be brought in the state and federal courts sitting in the City
of Boston, and FDISG and the Company hereby submit themselves to the exclusive
jurisdiction of those courts.
(d) This Agreement may be executed in any number of counterparts
each of which shall be deemed to be an original and which collectively shall be
deemed to constitute only one instrument.
(e) The captions of this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
13. Confidentiality. All books, records, information and data
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pertaining to the business of the other party which are exchanged or received
pursuant to the negotiation or the carrying out
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of this Agreement shall remain confidential and shall not be voluntarily
disclosed to any other person, except as may be required in the performance of
duties hereunder or as otherwise required by law.
14. Force Majeure. No party shall be liable for any default or delay in
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the performance of its obligations under this Agreement if and to the extent
such default or delay is caused, directly or indirectly, by (i) fire, flood,
elements of nature or other acts of God; (ii) any outbreak or escalation of
hostilities, war, riots or civil disorders in any country, (iii) any act or
omission of the other party or any governmental authority; (iv) any labor
disputes (whether or not the employees' demands are reasonable or within the
party's power to satisfy); or (v) nonperformance by a third party or any similar
cause beyond the reasonable control of such party, including without limitation,
failures or fluctuations in telecommunications or other equipment. In any such
event, the non-performing party shall be excused from any further performance
and observance of the obligations so affected only for so long as such
circumstances prevail and such party continues to use commercially reasonable
efforts to recommence performance or observance as soon as practicable.
Notwithstanding anything in this Agreement to the contrary, FDISG shall have in
place comprehensive business continuity and disaster recovery procedures and
systems and shall provide MassMutual, at least annually, test results of such
procedures and systems.
15. Entire Agreement. This Agreement, including all Schedules hereto,
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constitutes the entire Agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof.
16. Obligation of the Trust. A copy of the Agreement and Declaration of
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Trust of the Company is on file with the secretary of the Commonwealth of
Massachusetts, and notice is hereby given that this Agreement is executed on
behalf of the Trustees as Trustees of the Company and not individually, and that
the obligations of this Agreement are not binding upon any of the Trustees or
shareholders individually, but are binding only upon the assets and property of
the Fund.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed and delivered by their duly authorized officers as of the date
first written above.
FIRST DATA INVESTOR SERVICES GROUP, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
--------------------------------
Title: Vice President
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MML SERIES INVESTMENT FUND, on behalf of
MML EQUITY INDEX FUND
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
--------------------------------
Title: President
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MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: /s/ Hamline X. Xxxxxx
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Name: Hamline X. Xxxxxx
--------------------------------
Title: Senior Managing Director
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SCHEDULE A
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FEE SCHEDULE
For the services to be rendered, the facilities to be furnished and the payments
to be made by FDISG, as provided in this Agreement, MassMutual, on behalf of the
Fund, will pay FDISG on the first business day of each month a fee for the
previous month as set forth below.
First $100 million in net assets .10%
$100 - $250 million in net assets .075%
$250 - $500 million in net assets .05%
$500 - $1 billion in net assets .025%
Net assets in excess of $1 billion .01%
Minimum Fee for the Fund:
Year 1 $65,000
Year 2 $75,000
Thereafter $85,000
FDISG reserves the right to renegotiate the fees set forth on this Schedule A
and in Section 4 of the Agreement should the actual services vary materially
from the assumptions provided.
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SCHEDULE B
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Out-of-Pocket Expenses
Out-of-pocket expenses include, but are not limited to, the following:
- Overnight delivery and courier service
- Telephone and telecommunications charges (including fax)
- Pricing vendor services at $0.05 per equity quote (which amount
may not be changed without the prior written consent of the
Company)
- Terminals, transmitting lines and any expenses incurred in
connection with such lines
- Travel to and from Board Meetings outside the city of Boston,
Massachusetts (subject to prior approval from the Company)
- Custom programming requests at a rate of $100 per hour
- Duplicating charges with respect to filings with federal and
state authorities and Board meeting materials (when applicable)
- Forms and supplies for the preparation of Board meeting and other
materials for the Company or the Fund
- Any other unusual expenses in association with the operation of
the Company, such as excessive duplicating charges
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SCHEDULE C
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List of Services
Accounting Services:
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. Portfolio and general ledger accounting
. Daily pricing of all securities
. Daily valuation and NAV calculation
. Comparison of NAV to market movement
. Review of price tolerance/fluctuation report
. Research items appearing on the price exception report
. Preparation of monthly ex-dividend monitor
. Daily cash reconciliation with the custodian bank
. Daily updating of price information to MassMutual
. Daily support and report delivery to Portfolio Management
. Daily calculation of Fund advisor fees and waivers
. Daily maintenance of the Fund's general ledger including expense
accruals
. Preparation of month-end reconciliation package
. Monthly reconciliation of Fund expense records
Financial Administration Services:
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. Compliance testing
. Providing shareholder tax information
. Producing drafts of IRS and state tax returns
. Expense accrual monitoring
. Determination of dividends
. Prepare semi-annual/annual reports to shareholders
. Coordinate audit process with independent accountants
. Provide SEC standard performance information
. Coordinate with all aspects of the printing and mailing process
with MassMutual for all shareholder publications
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