Exhibit 8
CUSTODIAL SERVICES AGREEMENT
WHEREAS, Citibank, N.A. (the "Bank"), Citicorp and the MML Series Investment
Fund (the "Trust") have previously entered into an Investment Company Custodial
Services Agreement dated as of November 10, 1994 in respect to the MML Equity
Fund, a series of the Trust (the "Agreement"), a copy of which is annexed
hereto; and
WHEREAS, the Trust desires to have the Bank act as custodian for the MML Small
Cap Value Equity Fund (the "Fund"), a series of the Trust, substantially upon
the terms and conditions specified in the Agreement; and
WHEREAS, the Bank has agreed to provide such custodial services and to act as
Foreign Custodial Manager pursuant to a Foreign Custody Manager Addendum with
regard to the non-U.S. investments of the Fund held under this agreement:
NOW, THEREFORE, in consideration of the premises and the agreements hereinafter
set forth, the Bank and the Trust on behalf of the Fund agree as follows:
1. The Agreement is incorporated herein by reference and all references therein
to the Fund shall be deemed to refer to the MML Small Cap Value Equity Fund.
The Agreement as incorporate herein shall be the valid, binding and
enforceable obligation of the Bank, the Trust and the Fund as of the date
specified below.
2. The Agreement is amended as follows:
a. The fourth Whereas paragraph on page 1 is deleted.
b. Sections 4(B), 4(C), 4(D), 7, and 8 are deleted.
c. Section 6 is amended to add to the last sentence the following: "and only in
accordance with the requirements of Rule 17f-4".
d. Section 15(A) is amended to change the referenced U.S. Tax Identification
Number to 00-0000000.
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e. Section 19 is amended to provide that the address for notices to the Fund
shall be marked "Attention: Xxxxxxx X. Xxxxxxx", to delete the reference to
Citicorp, and to provide that the copy to be mailed or delivered to Mass
Mutual Life Insurance Company should be sent to "Attention: Xxxxxx X. Xxxxx".
f. Section 22(B) is amended to read as follows: "This Agreement together with
the Foreign Custody Manager Addendum contains the entire agreement among the
parties relating to custody of Property and supersedes all prior agreements
on this subject".
IN WITNESS WHEREOF, the parties hereto have caused this Custodial Services
Agreement dated as of May 28, 1998 to be executed by their respective offices
thereunto duly authorized.
CITIBANK, N.A. MML SERIES INVESTMENT FUND
ON BEHALF OF MML SMALL CAP
VALUE EQUITY FUND
BY: BY:
---------------------- ----------------------
NAME: NAME:
-------------------- --------------------
TITLE: TITLE: VP & CFO
------------------- -------------------
1
U.S. INVESTMENT COMPANY
CUSTODIAL SERVICES AGREEMENT
CUSTODIAL SERVICES AGREEMENT dated as of November 10, 1994 among CITIBANK,
N.A., a national banking association having an office at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 and acting through such office in New York (the "Bank"),
CITICORP, a corporation organized under the laws of the State of Delaware,
having an office at Citicorp Center, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 and MML Series Investment Fund, a Business Trust organized under the laws
of Massachusetts, having an office at 0000 Xxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxxx, 00000 (the "Trust").
WITNESSETH:
THAT WHEREAS, the Trust represents that it is a management investment
company registered under the Investment Company Act of 1940, as amended (the
"Investment Company Act");
WHEREAS, the Trust further represents that it is duly incorporated,
organized or associated and in good standing under the laws of its state of
incorporation, organization or association and the consummation of transactions
contemplated hereby or directed by it hereunder will not violate any applicable
laws, regulations or orders;
WHEREAS, the Trust represents that it is authorized to (a) open and
maintain a custody account (the "Custody Account") with the Bank to hold certain
property ("Property"), including but not limited to stocks, bonds or other
securities ("Securities"), cash and other property owned or held by the Fund,
(b) to enter into this Agreement and (c) direct all actions and transactions
contemplated hereunder;
WHEREAS, the MML Equity Fund is a series of the Trust (the "Fund"); and
WHEREAS, on June 12, 1992, the Securities and Exchange Commission issued an
order (the "Exemptive Order") which, among other things, exempts certain
indirect subsidiaries of Citicorp (the "Exempt Subsidiaries") from the
shareholders' equity requirements of Rule 17f-5 promulgated under the Investment
Company Act;
NOW, THEREFORE, in consideration of the premises and of the agreements
hereinafter set forth, the parties hereby agree as follows:
1. APPOINTMENT AND ACCEPTANCE
The Fund hereby appoints the Bank as custodian of the Property and as its
agent hereunder, and the Bank agrees to act as such upon the terms and
conditions hereinafter provided.
2. DELIVERY; SAFEKEEPING
The Fund has heretofore delivered, or will deliver or cause to be
delivered, Property to the Bank, which Property the Bank agrees to keep safely
as custodian for the Fund. The Bank shall not surrender possession of Property
except upon properly authorized Instructions (as hereinafter defined) of the
Fund or as may be required by due process of applicable law.
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3. IDENTIFICATION AND SEGREGATION OF ASSETS
With respect to Property in the Custody Account:
(A) Except as otherwise provided in this Agreement, the Bank will
separately identify on its books as belonging to the Fund and, to the extent
practicable, segregate all Property held pursuant to this Agreement by the Bank
or any other entity authorized to hold Property in accordance with Section 6 or
7 hereof.
(B) The Bank shall supply to the Fund from time to time as mutually agreed
upon a written statement with respect to all of the Property in the Custody
Account. In the event that the Fund does not inform the Bank in writing of any
exceptions or objections within sixty (60) days after receipt of such statement,
the Fund shall be deemed to have approved such statement.
4. STANDARD OF CARE
(A) The Bank shall exercise the same standard of care that it exercises
over its own assets in the safekeeping, handling, servicing, and disposition of
the Property in accordance with this Agreement. The Bank will exercise the due
care expected of a professional custodian for hire with respect to the Property
in its possession or control.
(B) The Bank shall be responsible for the acts or omissions of any Exempt
Subsidiary acting as a foreign subcustodian pursuant to the Exemptive Order or
any subsequent exemptive order issued by the Securities and Exchange Commission
to the same extent as if the act or omission of such Exempt Subsidiary were that
of the Bank.
(C) Except as otherwise provided above, the Bank shall use reasonable care
in selecting, and shall be responsible only for the proper selection of, any
foreign subcustodian or foreign depository.
(D) The Bank's delegation of duties to an Exempt Subsidiary shall not
relieve the Bank of any responsibility to the Fund for any loss due to such
delegation, except such losses or damages which may result from (i) political
risk, including, but not limited to losses resulting from exchange control
restrictions, confiscation, expropriation, nationalization, insurrection, civil
strife or armed hostilities and (ii) other risk of loss for which neither the
Bank nor any foreign subcustodian would be liable under Rule 17f-5 promulgated
under the Investment Company Act.
(E) In the event the Fund enters into triparty repurchase agreements
pursuant to which collateral therefor is to be held by a custodian other than
the Bank and the Fund instructs the Bank to deliver Property to such custodian,
the Bank shall be under no duty to determine whether such custodian satisfies
the requirements of Section 17(f) of the Investment Company Act or the Rules
promulgated thereunder. Citibank shall have no further duties or obligations
under this Agreement with respect to such Property.
(F) The Bank is not under any duty to supervise the investments of the
Fund, or to advise or make any recommendation to the Fund with respect to the
purchase or sale of any of the Securities or the investment of any cash. The
Fund shall have the sole and exclusive responsibility for investment of Property
held hereunder.
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5. PERFORMANCE BY THE BANK
(A) General
The Bank's performance of its duties hereunder and the day-to-day
operations of the Custody Account shall be in accordance with written service
standards furnished to, and accepted by the Fund in writing, by the Bank from
time to time, provided that at all times the Bank shall use at least the due
care expected of a professional custodian for hire in the performance of its
duties. Such service standards, as amended from time to time, are incorporated
herein by reference.
(B) Receipt, Delivery and Disposal of Securities
The Bank shall, or shall instruct any other entity authorized to hold
Property in accordance with Section 6 or 7 hereof to, receive or deliver
Securities and credit or debit the Fund's account, in accordance with properly
authorized Instructions from the Fund. The Bank or such entity shall also
receive in custody all stock dividends, fights and similar securities issued in
connection with Securities held hereunder, shall surrender for payment, in a
timely manner, all items maturing or called for redemption and shall take such
other action as the Fund may direct in properly authorized Instructions.
(C) Registration
Securities held hereunder may be registered in the name of the Bank, any
entity authorized to hold Property in accordance with Section 6 or 7 hereof, or
a nominee of the Bank or any such authorized entity, and the Fund shall be
informed upon request of all such registrations. Securities in registered form
will be transferred upon request of the Fund into such names or registrations as
it may specify in properly authorized Instructions.
(D) Cash Accounts
(i) All cash received or held by the Bank or by any entity
authorized to hold Property in accordance with Section 7 hereof as interest,
dividends, proceeds from transfer, and other payments for or with respect to the
Securities shall be (x) held in a cash account in accordance with properly
authorized Instructions received by the Bank or such entity, or (y) if specified
in the Fund's Instructions, converted to or from U.S. dollars and remitted to
the Fund. The Fund shall bear any foreign exchange risk in connection with any
such conversion. In effecting any currency conversions hereunder, the Bank or
such entity may use any methods or agencies as it may see fit including the
Bank's or such entity's facilities at customary rates.
(ii) The Fund agrees, with respect to all payments for purchases of
Securities to be deposited in the Custody Account, that funds for settlement
will be on deposit by the settlement date at the location of settlement, in good
available funds and in the currency of settlement. The Fund acknowledges that
nothing in this Agreement shall obligate the Bank to extend credit, grant
financial accommodation or otherwise advance moneys to the Fund for the purpose
of making any payments for purchases or part thereof or otherwise carrying out
any Instructions.
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(iii) The Fund authorizes the Bank from time to time to cause the
branch of the Bank located in London, England ("Citibank London") to establish a
multicurrency cash account reflecting cash received by any Eligible Foreign
Custodian (as hereinafter defined) on the Fund's behalf. Citibank London will
maintain such cash account in accordance with the requirements of Section 7
hereof applicable to an entity authorized to hold Property hereunder.
(E) Reports
(i) If the Bank has in place a system for providing
telecommunication access or other means of electronic access by customers to the
Bank's reporting system for Property in the Custody Account, then, at the Fund's
election, the Bank shall provide the Fund with such instructions and passwords
as may be necessary in order for the Fund to have such electronic access through
the terminal device under the control of the Fund. Such electronic access shall
be restricted to information relating to the Custody Account. If electronic
access to such reporting system is requested by the Fund, the Fund agrees to
assume full responsibility for the consequences of such use, including any
misuse or unauthorized use of the terminal device, instructions or passwords
referred to above, and agrees to defend and indemnify the Bank and hold the Bank
harmless from and against any and all liabilities, losses, damages, costs,
counsel fees, and other expenses of every nature suffered or incurred by the
Bank by reason of or in connection with the negligent or wrongful acts of the
Fund, its agents or employees, as to the terminal device, unless such
liabilities, losses, damages, costs, counsel fees and other expenses can be
shown to be the result of negligent or wrongful acts of the Bank, the Bank's
employees or the Bank's agents. Further, in the event the Fund elects to have
electronic access, the Bank shall provide the Fund on each business day a report
of the preceding business day's transactions relating to the Custody Account and
of the closing or net balances of each business day. If the Fund does not choose
to have electronic access, the Bank shall provide the Fund with such reports of
transactions in the Custody Account by such means as may be mutually agreed
upon.
(ii) The Bank agrees to use reasonable efforts to furnish the Fund
with such information regarding Property held hereunder as the Fund may
reasonably request in connection with its complying with requests of any
regulatory authorities having jurisdiction over the Fund.
(iii) The Bank shall also, subject to restrictions under applicable
law, obtain from any entity that it directly or indirectly controls or is
controlled by, and shall seek to obtain from any other entity with which the
Bank maintains the physical possession of any of the Property in the Custody
Account records of such entity relating to the Property in the Custody Account
as may be required by the Fund or its agents in connection with an internal
examination by the Fund of its own affairs. Upon a reasonable request from the
Fund, the Bank shall furnish to the Fund such reports (or portions thereof) of
the external auditors of each entity that it directly or indirectly controls or
is controlled by, and shall use its best efforts to furnish to the Fund reports
(or portions thereof) of the external auditors of each such other entity
relating directly to such entity's system of internal accounting controls
applicable to its duties under its agreement with the Bank.
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(F) Access
During the Bank's regular banking, any officer or employee of the Fund, any
independent accountant(s) selected by the Fund and any person designated by any
regulatory authority having jurisdiction over the Fund shall be entitled to
examine on the Bank's premises, Property held by the Bank on its premises and
the Bank's records regarding Property held hereunder deposited with entities
authorized to hold Property in accordance with Section 6 or 7 hereof, but only
upon the Fund's furnishing the Bank with properly authorized Instructions to
that effect, provided, that such examination shall be consistent with the Bank's
obligations of confidentiality to other parties. The Bank's costs and expenses
in facilitating such examinations shall be borne by the Fund, provided that such
costs and expenses shall not be deemed to include the Bank's costs in providing
to the Fund: (i) the "single audit report" of the independent certified public
accountants engaged by the Bank and (ii) such reports and documents as this
Agreement contemplates that the Bank shall furnish routinely to the Fund.
(G) Voting and other Action
(i) The Bank will transmit to the Fund upon receipt, and will
instruct any entities authorized to hold Property in accordance with Section 6
of 7 hereof to transmit to the Fund upon receipt, all financial reports,
stockholder communications, notices, proxies and proxy soliciting materials
received from issuers of the Securities, and all information relating to
exchange or tender offers received from offers with respect to the Securities.
Such proxies will be executed by the registered holder if the registered holder
is other than the Fund, but the manner in which Securities are to be voted will
not be indicated. Neither the Bank nor any other entity holding Property
hereunder shall vote any of the Securities or authorize the voting of any
Securities or give any consent or take any other action with respect thereto,
except as otherwise provided herein.
(ii) In the event of tender offers, the Fund will hand deliver or
telecopy Instructions to the Bank as to the action to be taken with respect
thereto, designating such Instructions as being related to a tender offer. The
Fund shall hold the Bank harmless from any adverse consequences of the Fund's
use of any other method of transmitting Instructions relating to a tender offer.
(iii) The Fund agrees that if it gives an Instruction after 2:00 PM
eastern time with respect to U.S. domestic custody for the performance of an act
on the last permissible date of a period established by a tender offer or on the
last permissible date for the performance of such act, the Fund shall hold the
Bank harmless from any adverse consequences in connection with acting upon or
failing to act upon such Instructions. With respect to non-U.S. domestic
custody, the Fund agrees that if it gives an Instruction for the performance of
an act on the last permissible date of a period established by a tender offer or
on the last permissible date for the performance of such act, the Fund shall
hold the Bank harmless from any adverse consequences In connection with acting
upon or failing to act upon such Instructions.
(iv) The Bank is authorized to accept and open on the Fund's behalf
all mail or communications relating to the Property received by the Bank or
directed in its care.
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6. AUTHORIZED USE OF U.S. DEPOSITORIES
The Fund authorizes the Bank, for any Securities held hereunder, to use the
services of any United States securities depository permitted to perform such
services for registered investment companies and their custodians under Rule
17f-4 promulgated under the Investment Company Act, including but not limited
to, The Depository Trust Company, the Federal Reserve Book Entry System and
Participants Trust Company ("U.S. Depositories"). The Bank will deposit
Securities held hereunder with a U.S. Depository only in an account which holds
assets of customers of the Bank.
7. USE OF FOREIGN CUSTODIANS
(A) Authorization
(i) The Bank may cause Securities which are foreign securities
within the meaning of Rule 17f-5(c)(1) promulgated under the Investment Company
Act ("Foreign Securities") and amounts of cash and cash equivalents reasonably
required to effect the Fund's Foreign Securities transactions ("Cash") in the
Custody Account to be held in such country or other jurisdiction as the Fund
shall direct in properly authorized Instructions.
(ii) Subject to prior approval by the board of trustees of the Fund,
the Bank may hold such Foreign Securities and Cash in subcustody accounts, which
shall be deemed part of the Custody Account and which have been established by
the Bank with (x) branches of "Qualified U.S. Banks", as defined in Rule 17f-
5(c)(3) promulgated under the Investment Company Act ("Branches"), or (y)
foreign custodians which satisfy the provisions of Rule 17f-5(c)(2)(i) or (ii)
promulgated under the Investment Company Act, or (z) Exempt Subsidiaries or
other foreign custodians which are exempt from such provisions under the
Exemptive Order or any other order or release issued by the Securities and
Exchange Commission (such Branches, foreign custodians and Exempt Subsidiaries,
collectively, the "Eligible Foreign Custodians").
(iii) Subject to prior approval by the board of trustees of the Fund,
the Bank or an Eligible Foreign Custodian is authorized to hold Foreign
Securities of the Fund in an account with any foreign securities depository or
foreign clearing agency which in the Bank's judgment satisfies the provisions of
Rule 17f-5(c)(iii) or (iv) promulgated under the Investment Company Act, or
which is exempt from such provisions under an order, no-action letter or release
issued by the Securities and Exchange Commission ("Eligible Foreign Securities
Depository").
(iv) Any Foreign Securities or Cash held by an Eligible Foreign
Custodian or an Eligible Foreign Securities Depository, shall be subject to
applicable laws, regulations, restrictions, customs, procedures, and market
practices (i) to which such Eligible Foreign Custodian or Eligible Foreign
Securities Depository is subject, (ii) as exist in the country in which such
Foreign Securities and Cash is held, and (iii) of the country of the currency in
which the Property is denominated. In the event that local laws or regulations
to which an Eligible Foreign Custodian or Eligible Foreign Securities Depository
is subject change in a way that would prevent or limit the performance of duties
and obligations by the Eligible Foreign Custodian or Foreign Securities
Depository, such duties and obligations shall be superseded and neither the Bank
nor any other member of the Citicorp organization shall be liable therefor or
for any damages in any way resulting from such prevented or limited performance.
The Fund acknowledges that, as is normally the case with respect to the deposits
outside the United States, deposits with Citibank London and any other entity
authorized to hold Property pursuant to the Agreement are not insured by the
Federal Deposit Insurance Corporation.
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(B) Provision of Information Regarding Foreign Custodians and Securities
Depositories
(i) The Bank shall use its best efforts to assist the Fund in
obtaining the following:
(a) As to each country in which Property is held, information
concerning whether, and to what extent, applicable foreign law would restrict
the access afforded the Fund's independent public accountants to books and
records kept by a foreign custodian or foreign securities depository used in
that country;
(b) As to each country in which Property is held, information
concerning whether, and to what extent, applicable foreign law would restrict
the Fund's ability to recover its assets in the event of the bankruptcy of a
foreign custodian or foreign securities depository used in that country;
(c) As to each country in which Property is held, information
concerning whether, and to what extent, applicable foreign law would restrict
the Fund's ability to recover assets that are lost while under the control of a
foreign custodian or foreign securities depository used in that country;
(d) As to each country in which Property is held, information
concerning whether under applicable foreign currency exchange regulations the
Fund's cash and cash equivalents held in that country are readily convertible to
U.S. dollars;
(e) Information relating to whether each foreign custodian or
foreign securities depository used would provide a level of safeguards for
maintaining the Fund's Securities not materially different from that provided by
the Bank in maintaining the Securities in the United States;
(f) Information concerning whether each foreign custodian or
foreign securities depository used has offices in the United States in order to
facilitate the assertion of jurisdiction over and enforcement of judgments
against such custodian or depository; and
(g) As to each foreign securities depository used, information
concerning the number of participants in, and operating history of, such
depository.
(ii) During the term of this Agreement, the Bank shall use its best
efforts to provide the Fund with prompt notice of any material changes in the
facts or circumstances upon which any of the foregoing information or statements
were based.
(iii) Notwithstanding any of the foregoing provisions of this
subsection (b) of this Section 7, the Bank's undertaking to assist the Fund in
obtaining the information referred to in this subsection (b) of the this Section
7 shall neither increase the Bank's duty of care nor reduce the Fund's
responsibility to determine for itself the prudence of entrusting its assets to
any particular foreign custodian or foreign securities depository.
(C) Segregation and Identification of Assets
The Bank will deposit Property of the Fund with an Eligible Foreign
Custodian only in an account which holds exclusively assets of customers of the
Bank. In the event that an Eligible Foreign Custodian is authorized to hold any
of the Foreign Securities placed in its care in an Eligible Foreign Securities
Depository pursuant to the provisions of subsection (A) of this Section 7, the
Bank will direct such Eligible Foreign Custodian to identify such Foreign
Securities on its books as being held for the account of the Bank as custodian
for its customers.
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(D) Instructions to Eligible Foreign Custodians; Instructions to Eligible
Foreign Securities Depositories
Any Property in the Custody Account held by an Eligible Foreign Custodian
will be subject only to the instructions of the Bank or its agents; and any
Foreign Securities held in an Eligible Foreign Securities Depository for the
account of an Eligible Foreign Custodian will be subject only to the
instructions of such Eligible Foreign Custodian, as subcustodian for the Bank.
(E) Contracts between the Bank and Exempt Subsidiaries
The Bank's contract with each Exempt Subsidiary provides:
(i) an acknowledgement by such Exempt Subsidiary that it is acting
as a foreign custodian for U.S. Investment Companies or their custodians
pursuant to the terms of the Exemptive Order;
(ii) that the Fund is entitled to enforce the terms of the
subcustodian agreement between the Bank and the Exempt Subsidiary and is
entitled to seek relief directly against the Exempt Subsidiary; and
(iii) an acknowledgement by such Exempt Subsidiary that at all times
it shall act with at least the due care expected of a professional custodian in
performing its duties.
8. CITICORP GUARANTEE
Citicorp agrees that it shall be liable, in accordance with the terms of a
guarantee issued in compliance with the conditions of the Exemptive Order, for
losses incurred by the Fund resulting from bankruptcy or insolvency of Exempt
Subsidiaries operating pursuant to the terms of the Exemptive Order. Citicorp's
obligations hereunder shall terminate automatically with respect to an Exempt
Subsidiary at such time as such obligations are no longer required by the
Exemptive Order. Obligations arising prior to the date of such termination shall
survive the termination.
9. USE OF AGENTS
The Bank may, subject to applicable laws, rules and regulations, appoint
agents, whether in its own name or that of the Fund, to perform any of the
duties of the Bank hereunder, and the Bank may delegate to any such agent so
appointed any of its functions under this Agreement.
10. INSTRUCTIONS
(A) The Bank is authorized to rely and act upon instructions
("Instructions") in writing which are signed by persons ("Authorized Persons")
named in a list provided to the Bank from time to time, which list must be
certified by the Fund's Secretary or Assistant Secretary and include
authenticated specimen signatures of all Authorized Persons.
(B) The Fund agrees that the Bank is authorized to rely and act upon such
Instructions in accordance with this Section 10 and the Funds Transfer
Procedures attached hereto and incorporated herein by reference (including each
Schedule A) to this Agreement and to debit or credit the applicable account(s)
of the Fund accordingly and that such Funds Transfer Procedures and method(s) of
transmission are commercially reasonable.
39
(C) The Bank shall be entitled to rely upon the continued authority of any
Authorized Person to give Instructions until the Bank receives notice from the
Fund to the contrary; and the Bank shall be entitled to rely upon any
Instructions it believes in good faith to have been given by an Authorized
Person.
(D) The Bank is further authorized to rely upon any Instructions received
by any other means and identified as having been given or authorized by any
Authorized Person, regardless of whether such Instructions shall in fact have
been authorized or given by any of such Authorized Persons, provided that the
Bank and the Fund shall have agreed upon the means of transmission and the
method of identification for such Instructions. Instructions received by any
other means shall include but not be limited to verbal Instructions only in
connection with delivery against payment or receipt against payment transactions
and transfer from one account with the Bank to another with the Bank and
provided that such verbal Instructions are promptly confirmed in writing by the
Fund. Notwithstanding the foregoing, in the event any such verbal Instructions
are not subsequently confirmed in writing, as provided above, the Fund agrees to
hold the Bank harmless and without liability for any claims or losses in
connection with such verbal Instructions.
(E) The Fund agrees to be bound by any Instruction, whether or not
authorized, given to the Bank in its name and accepted by the Bank in accordance
with the provisions hereof (including but not limited to the Funds Transfer
Procedures and Schedule A thereto) and further agrees to indemnify and hold the
Bank harmless from and against any loss, liability, claim or expense (including
legal fees and expenses) associated with the Bank's acting upon such
Instructions as provided herein, except such as may arise from the Bank's own
negligence, bad faith or willful misconduct.
(F) The Fund may appoint one or more investment managers ("Investment
Managers") with respect to the Custody Account. The Bank is authorized to act
upon Instructions received from any Investment Manager to the same extent that
the Bank would act upon the Instructions of an Authorized Person, provided that
the Bank has received written evidence of the Investment Manager's appointment
and written confirmation from the Investment Manager evidencing acceptance of
such appointment. The Investment Manager shall provide to the Bank from time to
time a list of persons authorized to give Instructions on behalf of the
Investment Manager. The list must be certified by the Investment Manager's
Secretary or Assistant Secretary and include authenticated specimen signatures
of such persons.
(G) If the Fund should choose to have telecommunication or other means of
electronic access to the Bank's reporting system for Property in the Custody
Account, pursuant to paragraph (E) of Section 5, the Bank is also authorized to
rely and act upon any Instructions received by it through a terminal device,
provided that such Instructions are accompanied by code words which the Bank has
furnished to the Fund, or an Authorized Person, by any method mutually agreed to
by the Bank and the Fund, provided that the Bank has not been notified by the
Fund, or any such Authorized Person to cease to recognize such code words,
regardless of whether such Instructions shall in fact have been given or
authorized by the Fund or any such Authorized Person.
11. SEGREGATED ACCOUNT
The Bank, upon receipt of Instructions, shall establish and maintain a
Segregated Account or Accounts as described by the Securities and Exchange
Commission ("SEC") in Investment Company Act Release No. 10666, or any
subsequent release or releases of the SEC relating to the maintenance of
Segregated Accounts by registered investment companies (the "Release"). Upon
receipt of Instructions, the Bank shall transfer into such Account or Accounts
cash and/or Portfolio Securities:
(A) In accordance with the provisions of any agreement among the Fund, the
Bank and a broker-dealer registered under the Exchange Act and a member of the
NASD or any Futures Commission Merchant registered under the Commodity Exchange
Act, relating to compliance with the rules of the Options Clearing Corporation
and of any registered national securities exchange or the Commodity Futures
Trading Commission or any registered Contract Market, or of any similar
organizations regarding escrow or other arrangements in connection with
transactions by the Fund;
40
(B) For the purpose of segregating cash or securities in connection with
options purchased or written by the Fund or commodity futures purchased or
written by the Fund;
(C) For the deposit of any Portfolio Securities which the Fund has agreed
to sell on a forward commitment basis or other purpose on which the Release
applies;
(D) For other proper corporate purposes, but only, in the case of this
clause (D), upon receipt of, in addition to Instructions, a certified copy of a
resolution of the Board, or of the Executive Committee signed by an officer of
the Fund and certified by the Secretary or an Assistant Secretary, setting forth
the purpose or purposes of such Segregated Account and declaring such purposes
to be proper corporate purposes; and
(E) Assets may be withdrawn from the Segregated Account pursuant to
Instructions only:
(i) In accordance with the provisions of any agreements referred in
(a) or (b) above;
(ii) For sale or delivery to meet the Fund's obligations under
outstanding firm commitment or when-issued agreements for the purchase of
Portfolio Securities and under reverse repurchase agreements;
(iii) For exchange for other liquid assets of equal or greater value
deposited in the Segregated Account;
(iv) To the extent that the Fund's outstanding forward commitment or
when-issued agreements for the purchase of portfolio securities or reverse
repurchase agreements are sold to other parties or the Fund's obligations
thereunder are met from assets of the Fund other than those in the Segregated
Account; or
(v) For delivery upon settlement of a forward commitment agreement
for the sale of Portfolio Securities.
Notwithstanding anything herein to the contrary, the Bank shall have no
duty to, and shall not be obligated to determine or ascertain whether any such
Segregated Account, or any withdrawals or additions to such account is in
compliance with the rules, regulations and releases of the SEC, or that any such
Segregated Account or withdrawals or additions to such Segregated Account is
consistent with any other agreements or contracts the Fund may enter into from
time to time. Unless otherwise agreed to in writing, the Bank's sole
responsibility with respect to any Segregated Account or Accounts contemplated
in this Section shall be to act upon the Fund's Instructions.
12. THE FUND
(A) The Fund agrees that no printed material or other matter in any
language (including without limitation, prospectuses, statements of additional
information, notices to shareholders, annual reports and promotional material)
which mention the Bank's or Citicorp's name or the rights, powers or duties of
the custodian of the Fund shall be issued by the Fund or on the Fund's behalf
unless the Bank shall first have given its specific written consent thereto;
provided, however, that no prior consent shall be required if the only reference
to the Bank's or Citicorp's name is in identifying the Bank as the Fund's
custodian.
41
(B) The Fund shall give prior notice to the Bank of any change in its
place of incorporation or organization, mailing address, or sponsors, or any
significant change in management, investment objectives, fees or redemption
rights.
(C) The Fund confirms that it is, and agrees that in the future it will
be, audited at least annually by an independent accounting firm and that it
mails, and in the future will mail, an audited financial report of the Fund to
its shareholders at least annually.
13. FEES AND EXPENSES
Fees and expenses for the services rendered under this Agreement shall be
mutually agreed upon by the parties in writing. The Bank shall be entitled to
debit the Custody Account for such fees and expenses.
14. LIENS
The Bank shall have a lien on the Property in the Custody Account to secure
payment of fees and expenses for the services rendered under this Agreement.
Except as otherwise provided in paragraph 22(D), if the Bank advances cash or
securities to the Fund for any purpose or in the event that the Bank or its
nominee shall incur or be assessed any taxes, charges, expenses, assessments,
claims or liabilities in connection with the performance of its duties
hereunder, except such as may arise from its or Its nominee's negligent action,
negligent failure to act or willful misconduct, any Property at any time held
for the Custody Account shall be security therefor and the Fund hereby grants a
security interest therein to the Bank. The Fund shall promptly reimburse the
Bank for any such advance of cash or securities or any such taxes, charges,
expenses, assessments, claims or liabilities upon request for payment. Except as
otherwise provided in paragraph 22(D), should the Fund fail to so reimburse the
Bank, the Bank shall be entitled to dispose of such Property to the extent
necessary to obtain reimbursement. The Bank shall be entitled to debit any
account of the Fund with the Bank including, without limitation, the Custody
Account in connection with any such advance and any interest on such advance as
the Bank deems reasonable.
15. TAX STATUS/WITHHOLDING TAXES
(A) The Fund's U.S. Tax Identification Number is MML Equity Fund 04-
2476032.
(B) The Fund may be required from time to time to file such proof of
taxpayer status or residence, to execute such certificates and to make such
representations and warranties, or to provide any other information or
documents, as the Bank and/or the Eligible Foreign Custodian may deem necessary
or proper to fulfill the Bank's and/or Eligible Foreign Custodian's obligations
under applicable law. The Fund shall provide the Bank and/or Eligible Foreign
Custodian in a timely manner, with copies of originals if necessary and
appropriate, or any such proofs of residence, taxpayer status, beneficial
ownership and any other information or documents which the Bank and/or a
Eligible Foreign Custodian may reasonably request.
(C) If any tax or other governmental charge or assessment shall become
payable with respect to any payment due to the Fund ("Taxes"), such Taxes shall
be withheld from such payment in accordance with applicable law. The Bank and/or
the Eligible Foreign Custodian may withhold any interest, any dividends or other
distributions or securities receivable in respect of Securities, proceeds from
the sale or distribution of Securities ("Payments"), or may sell for the account
of the Fund any part thereof or all of the Securities, and may apply such
Payment in satisfaction of such Taxes, the Fund remaining liable for any
deficiency. If any Taxes shall become payable with respect to any payment made
to the Fund by the Bank or a Eligible Foreign Custodian in a prior year, the
Bank and the Eligible Foreign Custodian may withhold Payments in satisfaction of
such prior year's Taxes. The Fund shall indemnify and hold harmless the Bank and
the Eligible Foreign Custodian, its officers, employees, agents and affiliated
companies against any Taxes, penalties, additions to tax, and interest, and
costs and expenses related thereto, arising out of claims against the Bank and
the Eligible Foreign Custodian by any governmental authority for failure to
withhold Taxes or arising out of any reclaim or refund of taxes or other tax
benefit obtained by the Bank or the Eligible Foreign Custodian for the Fund.
42
(D) This Section 15 shall survive the termination of this Agreement and
continue in force until the time for assessment of all Taxes expires.
16. AMENDMENT
This Agreement may not be amended except by a written agreement among the
parties hereto.
17. TERMINATION
Either the Bank or the Fund may terminate this Agreement upon sixty (60)
days' written notice to the other parties.
18. CONFIDENTIALITY
Subject to the foregoing provisions of this Agreement and subject to any
applicable law, the Fund and the Bank shall each use best efforts to maintain
the confidentiality of matters concerning Property in the Custody Account.
19. NOTICES
All notices and other communications hereunder, except for Instructions and
reports relating to the Property which are transmitted through the Bank's
electronic reporting system for Property in the Custody Account, shall be in
writing, telex or telecopy or, if verbal, shall be promptly confirmed in
writing, and shall be hand-delivered, telexed, telecopied or mailed by prepaid
first class mail (except that notice of termination, if mailed, shall be by
prepaid registered or certified mail) to each party at its address set forth
above, if to the Fund, marked "Attention Hamline X. Xxxxxx", and if to the Bank,
marked "Citibank as Custodian for "MML Series Investment Fund", and if to
Citicorp, marked "Attention of Office of Corporate Finance, Xxxxxxx X. Xxxxx,
Vice President", and, if to any of the preceding, a copy shall be promptly
mailed or delivered to Mass Mutual Life Insurance Company, 0000 Xxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention, Xxxxx X. Xxxxx, Vice President and
Treasurer, or at such other address as either party may give notice of to the
other.
20. ASSIGNMENT
No party may assign, transfer or charge all or any of its rights and
benefits hereunder without the written consent of the other parties. Any
purported assignments made in contravention of this Section shall be null and
void and of no effect whatsoever.
21. GOVERNING LAW
This Agreement shall be governed by and construed according to the laws of
the State of New York and the parties agree that the courts of the State of New
York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any disputes which may arise out to or in connection
with this Agreement, and, for such purposes, each irrevocably submits to the
non-exclusive jurisdiction of such courts.
22. MISCELLANEOUS
(A) This Agreement may be executed in several counterparts, each of which
shall be an original, but all of which shall constitute one and the same
instrument.
(B) This Agreement contains the entire agreement among the parties
relating to custody of Property and supersedes all prior agreements on this
subject.
43
(C) The captions of the various sections and subsections of this Agreement
have been inserted only for the purposes of convenience and shall not be deemed
in any manner to modify, explain, enlarge or restrict any of the provisions of
this Agreement.
(D) 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.
44
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized.
CITICORP, N.A. CITICORP
BY: /s/Xxxxx X. Xxxxxxxx BY: /s/Xxxxxxx X. Xxxxx
NAME: Xxxxx X. Xxxxxxxx NAME: Xxxxxxx X. Xxxxx
TITLE: North American Investors Services TITLE: Vice President
000 Xxxx Xxxxxx/00xx Xxxxx
(000)000-0000
MML SERIES INVESTMENT FUND ON BEHALF OF MML EQUITY FUND
BY: /s/Xxxxxxx X. Xxxx
NAME: Xxxxxxx X. Xxxx
TITLE: Vice President -Secretary
45
FOREIGN CUSTODY MANAGER ADDENDUM
TO
U.S. INVESTMENT COMPANY CUSTODIAL SERVICES AGREEMENT, dated as of May 28, 1998,
by and between, MML Series Investment Fund (the "Trust"), on behalf of MML Small
Cap Value Equity Fund (the "Client") and CITIBANK, N.A. (the "Custodian").
The Client desires to have the Custodian assume and discharge the responsibility
of the Client's board of trustees (hereinafter the "Board") to select, contract
with and monitor certain custodians on non-U.S. assets of the Client by the
Custodian pursuant to the Custodial Services Agreement (the "Agreement"). The
Custodian agrees to accept the delegation and to perform the responsibility as
provided in this Addendum.
(A) FOREIGN CUSTODY MANAGER;
(i) The Board hereby delegates to the Custodian, and the Custodian hereby
accepts the delegation to it, of the obligation to serve as the Client's
"Foreign Custody Manager" (as defined in Rule 17f-5(a)(2) under the
Investment Company Act of 1940, as amended from time to time), in respect
to the Client's foreign investments held from time to time by the Custodian
with any Eligible Foreign Custodian (as defined in Rule 17f-5(a)(1)) and
that is not a Compulsory Depository as defined below. Foreign investments
are any Property (as defined in the Agreement) for which the primary market
is outside the U.S.A.
(ii) As Foreign Custody Manager, the Custodian shall:
(1) select Eligible Foreign Custodians to serve as foreign
custodians and place and maintain the Client's foreign investments
with such foreign custodians;
(2) in selecting an Eligible Foreign Custodian, first determine
that foreign investments placed and maintained in the safekeeping of
each Eligible Foreign Custodian shall be subject to reasonable care,
based on the standards applicable to custodians in the relevant
market, after having considered all factors relevant to the
safekeeping of such investments including, without limitation, those
factors set forth in Rule 17f-5(c)(1)(i)-(iv);
(3) enter into written agreement with each Eligible Foreign
Custodian selected by the Custodian hereunder;
(4) determine that the written contract with each Eligible Foreign
Custodian (or, in the case of an Eligible Foreign Custodian that is a
Securities Depository (as defined Rule 17f-5) such contract (which
may be between the Custodian and the Securities Depository or between
an Eligible Foreign Custodian selected by the Custodian and the
Securities Depository), the rules or established practices or
procedures of the Securities Depository, or any combination of the
foregoing) requires that the Eligible Foreign Custodian will provide
reasonable care for the foreign investments, based on the standards
specified in Rule 17f-5(c)(1), and that all such contracts, rules,
practices and procedures satisfy the requirements of Rule 17f-
5(c)(2);
(5) provide written reports (x) notifying the Board of the
placement of foreign investments with each Eligible Foreign
Custodian, such reports to be provided at such
time as the Board deems reasonable and appropriate, but not less than
quarterly, and (y) promptly notifying the Board of the occurrence of
any material change in the arrangements with an Eligible Foreign
Custodian;
(6) monitor the continued appropriateness of (x) maintaining the
foreign investments with Eligible Foreign Custodians selected
hereunder and (y) the governing contractual arrangements; it being
understood, however, that in the event the Custodian shall determine
that any Eligible Foreign Custodian would no longer afford the
foreign investments reasonable care, the Custodian shall promptly so
advise the Client and shall then act in accordance with Instructions
(as defined in the Agreement) with respect to the disposition of the
foreign investments; and
(7) exercise such reasonable care, prudence and diligence in
serving as the Foreign Custody Manager as the Custodian exercises in
performing its responsibility under the Agreement for the safekeeping
of the Client's Property (as defined in the Agreement).
(iii) Nothing in this paragraph shall relieve the Custodian of any
responsibility otherwise provided in the Agreement or this Addendum for
loss or damage suffered by the Client from an act of negligence or willful
misconduct on the part of the Custodian.
(iv) Nothing in this Addendum shall require the Custodian to make any
selection on behalf to the Client that would entail consideration of any
factor reasonably related to the systemic risk of holding assets in a
particular country including, but not limited to, such country's financial
infrastructure and prevailing settlement practices. The Custodian agrees to
provide to the Client such information relating to such risk as the Client
shall reasonably request from time to time and such other information as
the Custodian generally makes available to customers with regard to such
countries and risk.
(v) Citibank represents that it is qualified under Rule 17f-5 as a
Foreign Custody Manager and will notify the Fund if it ceases to be
qualified to Act as a Foreign Custody Manager.
(B) COMPULSORY DEPOSITORIES:
(i) Notwithstanding the provisions of Section A above, the Custodian
shall not serve as Foreign Custody Manager in respect of any Compulsory
Depository, as defined below. The Custodian, through its branches or any
Subcustodians, shall be entitled to deposit and maintain the foreign
investments in Compulsory Depositories as the Custodian deems prudent and
appropriate, unless otherwise instructed by the Client or its delegate;
(ii) Prior to depositing the foreign investments in any Compulsory
Depository, the Custodian shall notify the Client that a Compulsory
Depository will be used and provide the Client, in respect of the
Compulsory Depository, with current information of the type the Custodian
provided to clients in the Custodian's informational binders entitled "SEC
Rule 17f-5 Package". The Custodian, shall make its representatives
available to consult, in good faith, with such of the Client's delegates as
the Client shall designate regarding the advisability of depositing the
Client's foreign investments with any Compulsory Depository;
(iii) The Custodian shall provide the Client with reports regarding
Compulsory Depositories as provided in Section (A)(ii)(5), above and shall
provide the Client with such other
information with regard to any Compulsory Depository as the Client shall
reasonably request, and
(iv) A "Compulsory Depository" shall mean a Securities Depository that is
non-U.S. Securities Depository the use of which is mandatory (x) by law or
regulation, (y) because securities cannot be withdrawn from the Securities
Depository or (z) because maintaining securities outside the Securities
Depository is not consistent with the prevailing local custodial practices.
The Custodian shall supply to the Client from time to time a schedule of
the Compulsory Depositories in which the Custodian holds the Client's
foreign investments.
(C) Termination:
(i) The Client may terminate this delegation upon written notice to the
Custodian.
(ii) The Custodian may terminate its acceptance of this delegation upon
ninety (90) days written notice to the Client.
(D) Limitation of Trust Liability:
A copy of the Agreement and Declaration of Trust of the Trust is on the
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.
IN WITNESS WHEREOF, the parties have caused this Addendum to be executed as of
the 27th day of May, 1998, by their respective officers thereunto duly
authorized.
CITIBANK, N.A., NEW YORK OFFICE MML SERIES INVESTMENT FUND
ON BEHALF OF MML SMALL CAP
VALUE EQUITY FUND
By: By: /s/ [INITIALS X.X. APPEAR HERE]
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title: Vice President & Chief
---------------------------- Financial Officer
-----------------------------
