Exhibit G(3)
FORM OF
ADMINISTRATIVE AND SHAREHOLDERS SERVICES AGREEMENT
Between
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
and
MASSMUTUAL INSTITUTIONAL FUNDS
FORM OF
ADMINISTRATIVE AND SHAREHOLDER SERVICES AGREEMENT
This ADMINISTRATIVE AND SHAREHOLDER SERVICES AGREEMENT (the "Agreement"),
dated as of the _____ of ___________, 1999 (the "Effective Date") is by and
between MassMutual Institutional Funds (the "Trust") on behalf of MassMutual
_______ Fund (the "Fund") and Massachusetts Mutual Life Insurance Company (the
"Manager").
WHEREAS, the Fund is a series of the Trust, a Massachusetts business trust
which is an open-end diversified 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
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.
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 ▇▇▇▇ ▇▇▇) 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; and
9. Payments due pursuant to any 12b-1 Plan adopted by the Trust and
applicable to the Fund.
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.
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 judgment, mistake of law, or any other loss, claim, damages,
liabilities, or expenses arising by reason of it acting hereunder, 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, the Trust and
MassMutual shall notify each other as soon as reasonably possible following the
occurrence of an event described in this subsection.
ARTICLE V: EFFECTIVE DATE, TERMINATION AND AMENDMENT
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 a 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 Trustee of the Trust) of the Manager or of the
Trust by vote case in person at a meeting called for the purpose of voting on
such approval .
B. Termination. Anything to the contrary herein notwithstanding, this Agreement
may at any time be terminated (i) 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, (ii) by vote of majority of the outstanding shares of
the Fund (as defined in the 1940 Act), or (iii) by the Manager on 90 days'
written notice to the Trust without the payment of any penalty by the Manager.
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.
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.
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 or of one or more
Sub-Advisers of one or more series of the Trust, and that the Manager and such
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
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President & Secretary
(b) In the case of notices sent to the Manager to:
Massachusetts Mutual Life Insurance Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
In the case of notices sent to either party, a copy to the Bank to:
Investors Bank & Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or at such other place as such party may from time to time designate in writing.
G. Insurance Coverage. The Fund and the Trust and the Manager shall each at all
times maintain such insurance coverages adequate for the nature of its
operations, including directors and officers, errors and omissions, and fidelity
bond insurance coverages.
H. Intentionally Omitted.
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 as of the day and year first above
written.
MASSMUTUAL INSTITUTIONAL FUNDS
on behalf of MassMutual _________Fund
By: _________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: __________________________________
EXHIBIT A
NET ASSET VALUE CALCULATIONS
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 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 MassMutual 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.
EXHIBIT B
FUND ACCOUNTING FUNCTIONS
MassMutual shall have the following responsibilities pursuant to ss.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
the Transfer Agent, the Fund, the Manager, 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 SEC 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.
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 SEC, IRS or
other governmental audits, as required.
15. Providing the portfolio managers with cash availability based on
security settlements, shareholder activity, maturities, and income
collections for the Fund by 8:30 a.m. each valuation day.
