EXHIBIT 8(a)
CUSTODIAN AGREEMENT
Between
MASSMUTUAL INSTITUTIONAL FUNDS
And
INVESTORS BANK & TRUST COMPANY
TABLE OF CONTENTS
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Section Page
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1. Bank Appointed Custodian........................................ 1
2. Definitions..................................................... 1
2.1 Authorized Person.................................. 1
2.2 Security........................................... 1
2.3 Portfolio Security................................. 2
2.4 Officers' Certificate.............................. 2
2.5 Book-Entry System.................................. 2
2.6 Depository......................................... 2
2.7 Proper Instructions................................ 2
3. Separate Accounts............................................... 3
4. Certification as to Authorized Persons.......................... 3
5. Custody of Cash................................................. 3
5.1 Purchase of Securities............................. 3
5.2 Redemptions........................................ 4
5.3 Distributions and Expenses of Fund................. 4
5.4 Payment in Respect of Securities................... 4
5.5 Repayment of Loans................................. 4
5.6 Repayment of Cash.................................. 4
5.7 Foreign Exchange Transactions...................... 4
5.8 Other Authorized Payments.......................... 4
5.9 Termination........................................ 5
6. Securities...................................................... 5
6.1 Segregation and Registration....................... 5
6.2 Voting and Proxies................................. 5
6.3 Book-Entry System.................................. 5
6.4 Use of a Depository................................ 6
6.5 Use of Book-Entry System for Commercial Paper...... 8
6.6 Use of Immobilization Programs..................... 8
6.7 Eurodollar CDs..................................... 9
6.8 Options and Futures Transactions................... 9
(a) Puts and Calls Traded on Securities
Exchanges, NASDAQ or Over-the-Counter...... 9
Page
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(b) Puts, Calls, and Futures Traded
on Commodities Exchanges................... 9
6.9 Segregated Account................................. 10
6.10 Interest Bearing Call or Time Deposits............. 11
6.11 Transfer of Securities............................. 11
7. Redemptions..................................................... 13
8. Merger, Dissolution, etc. of Fund............................... 13
9. Actions of Bank Without Prior Authorization.................... 13
10. Collection; Defaults............................................ 14
11. Maintenance of Records; Accounting Services..................... 14
12. Concerning the Bank............................................. 15
12.1 Performance of Duties;
Standard of Care.................................. 15
12.2 Agents and Subcustodians........................... 16
12.3 Insurance.......................................... 16
12.4 Fees and Expenses of Bank.......................... 17
12.5 Advances by Bank.................................. 17
13. Termination..................................................... 17
14. Confidentiality................................................. 18
15. Notices......................................................... 19
16. Amendments...................................................... 19
17. Parties......................................................... 19
18. Governing Law................................................... 20
19. Counterparts.................................................... 20
20. Disclaimer and Limitation of Liability.......................... 20
21. Necessary Action................................................ 20
CUSTODIAN AGREEMENT
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This Custodian Agreement (the "Agreement") made this 29th day of August,
1994, between MassMutual Institutional Funds, a Massachusetts business trust
(the "Trust") and Investors Bank & Trust Company, a Massachusetts corporation
(the "Bank").
WHEREAS, the Trust is registered as an open end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act")
and currently consists of seven separate portfolios (the "Funds"); and
WHEREAS, the Bank has the qualifications required by Section 17(f)(1) of
the 1940 Act to act as custodian of the portfolio securities and cash of the
Trust, and has indicated its willingness to so act, subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto agree as follows:
1. Bank Appointed Custodian. The Trust hereby appoints the Bank as
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custodian of its portfolio securities and cash delivered to the Bank as
hereinafter described and the Bank agrees to act as such upon the terms and
conditions hereinafter set forth.
2. Definitions. Whenever used herein, the terms listed below will have the
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following meaning:
2.1 Authorized Person. Authorized Person will mean any of the persons
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duly authorized to give Proper Instructions or otherwise act on behalf of the
Trust by appropriate resolution of its Board of Trustees (the "Board"), and set
forth in a certificate as required by Section 4 hereof.
2.2 Security. The term security as used herein will have the same meaning
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as when such term is used in the Securities Act of 1933, as amended, including,
without limitation, any note, stock, treasury stock, bond, debenture, evidence
of indebtedness, certificate of interest or participation in any profit sharing
agreement, collateral-trust certificate, preorganization certificate or
subscription, transferable share, investment contract, voting-trust certificate,
certificate of deposit for a security, fractional undivided interest in oil,
gas, or other mineral rights, any put, call, straddle, option, or privilege on
any security, certificate of deposit, or group or index of securities (including
any interest therein or based on the value thereof), or any put, call, straddle,
option, or privilege entered into on a national securities exchange relating to
a foreign currency, or, in general, any interest or instrument commonly known as
a "security", or any certificate of interest or participation in, temporary or
interim certificate for, receipt for, guarantee of, or warrant or right to
subscribe to, or option contract to purchase or sell any of the foregoing, and
futures, forward contracts and options thereon.
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2.3 Portfolio Security. Portfolio Security will mean any security owned
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by the Trust.
2.4 Officers' Certificate. Officers' Certificate will mean, unless
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otherwise indicated, any request, direction, instruction, or certification in
writing signed by any two Authorized Persons.
2.5 Book-Entry System. Book-Entry System shall mean the Federal Reserve
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Treasury Department Book Entry System for United States government,
instrumentality and agency securities operated by the Federal Reserve Bank, its
successor or successors and its nominee or nominees.
2.6 Depository. Depository shall mean The Depository Trust Company
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("DTC"), a clearing agency registered with the Securities and Exchange
Commission under Section 17A of the Securities Exchange Act of 1934, as amended
("Exchange Act"), its successor or successors and its nominee or nominees. The
term "Depository" shall further mean and include any other person authorized to
act as a depository under the 1940 Act, its successor or successors and its
nominee or nominees, specifically identified in a certified copy of a resolution
of the Board.
2.7 Proper Instructions.
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(a) Proper Instructions shall mean:
(i) instructions regarding the purchase or sale of
Portfolio Securities, and payments and deliveries in connection therewith, given
by an Authorized Person as shall have been designated in an Officers'
Certificate, such instructions to be given in such form and manner as the Bank
and the trust shall agree upon from time to time, and
(ii) instructions (which may be continuing instructions)
regarding other matters signed or initialed by such one or more persons from
time to time designated in an Officers' Certificate as having been authorized by
the Board.
(b) Oral instructions will be considered Proper Instructions if
the Bank reasonably believes them to have been given by a person authorized to
give such instructions with respect to the transaction involved. The Trust shall
cause all oral instructions to be promptly confirmed in writing.
(c) Upon receipt of an Officers' Certificate as to the
authorization by the Board accompanied by a detailed description of procedures
approved by the Trust, Proper Instructions may include communication effected
directly between electro-mechanical or electronic devices provided that the
Board and the Bank are satisfied that such procedures afford adequate safeguards
for the Trust's assets.
(d) The Bank shall act upon and comply with any subsequent Proper
Instruction which modifies a prior instruction and the sole obligation of the
Bank with respect to any follow-up or confirmatory instruction shall be to make
reasonable efforts to
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detect any discrepancy between the original instruction and such confirmation
and to report such discrepancy to the Trust.
(e) The Trust shall be responsible, at the Trust's expense, for
taking any action, including any reprocessing, necessary to correct any such
discrepancy or error, and to the extent such action requires the Bank to act,
the Trust shall give the Bank specific Proper Instructions as to the action
required.
3. Separate Accounts. The Bank will at all times segregate the assets of
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each series or portfolio to which this Agreement relates into a separate account
for each such series or portfolio containing the assets of such series or
portfolio (and all investment earnings thereon).
4. Certification as to Authorized Persons. The Secretary or an Associate
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Secretary of the Trust will at all times maintain on file with the Bank his or
her certification to the Bank, in such form as may be acceptable to the Bank, of
the names and signatures of the Authorized Persons, it being understood that
upon the occurrence of any change in the information set forth in the most
recent certification on file (including without limitation any person named in
the most recent certification who is no longer an Authorized Person as
designated therein), the Secretary or an Associate Secretary of the Trust, will
sign a new or amended certification setting forth the change and the new,
additional or omitted names or signatures. The Bank will be entitled to rely and
act upon any Officers' Certificate given to it by the Trust which has been
signed by Authorized Persons named in the most recent certification.
5. Custody of Cash. As Custodian for the Trust, the Bank will open and
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maintain a separate account or accounts for each series or portfolio, in the
name of the Trust or in the name of the Bank, as Custodian of the Trust, and
will deposit to such account or accounts of the Trust all of the cash of the
Trust, except for cash held by a subcustodian appointed pursuant to Section 13.2
hereof, including borrowed funds, delivered to the Bank. Upon receipt by the
Bank of Proper Instructions (which may be continuing instructions) or in the
case of payments for redemptions and repurchases of outstanding shares of the
Trust, notification from the Trust's transfer agent as provided in Section 7
hereof, requesting such payment, designating the payee or the account or
accounts to which the Bank will release funds for deposit, and stating that it
is for a purpose permitted under the terms of this Section 5, specifying the
applicable subsection, the Bank will make payments of cash held for the accounts
of the Trust, insofar as funds are available for that purpose, only as permitted
in subsections 5.1-5.9 below. Nothing contained herein will act to preclude the
Trust from establishing one or more joint trading accounts to invest monies that
are uninvested at the close of business, provided that appropriate regulatory
approvals are obtained.
5.1 Purchase of Securities. Upon the purchase of securities for the
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Trust, against contemporaneous receipt of such securities by the Bank registered
in the name of the Trust or in the name of, or properly endorsed and in form for
transfer to, the Bank, or a nominee of the Bank, as Custodian of the Trust, or
receipt for the account of the Bank
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pursuant to the provisions of Section 6 hereof, each such payment to be made at
the purchase price shown on a broker's confirmation (or transaction report in
the case of Book Entry Paper) of purchase of the securities received by the Bank
before such payment is made, as confirmed in the Proper Instructions received by
the Bank before such payment is made.
5.2 Redemptions. In such amount as may be necessary for the repurchase
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or redemption of common shares of the Trust offered for repurchase or redemption
in accordance with Section 7 hereof.
5.3 Distributions and Expenses of Trust. For the payment on the
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account of the Trust of dividends or other distributions to shareholders as may
from time to time be declared by the Board, interest, taxes, management,
administrative or supervisory fees, distribution fees, fees of the Bank for its
services hereunder and reimbursement of the expenses and liabilities of the Bank
as provided hereunder, fees of any transfer agent, fees for legal, accounting,
and auditing services, or other operating expenses of the Trust.
5.4 Payment in Respect of Securities. For payments in connection with
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the conversion, exchange or surrender of Portfolio Securities or securities
subscribed to by the Trust held by or to be delivered to the Bank.
5.5 Repayment of Loans. To repay loans of money made to the Trust,
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but, in the case of final payment, only upon redelivery to the Bank of any
Portfolio Securities pledged or hypothecated therefor and upon surrender of
documents evidencing the loan;
5.6 Repayment of Cash. To repay the cash delivered to the Trust for the
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purpose of collateralizing the obligation to return to the Trust certificates
borrowed from the Trust representing Portfolio Securities, but only upon
redelivery to the Bank of such borrowed certificates.
5.7 Foreign Exchange Transactions. For payments in connection with
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foreign exchange contracts or options to purchase and sell foreign currencies
for spot and future delivery which may be entered into by the Bank on behalf of
the Trust upon the receipt of Proper Instructions, such Proper Instructions to
specify the currency broker or banking institution (which may be the Bank, or
any other subcustodian or agent hereunder, acting as principal) with which the
contract or option is made, and the Bank shall have no duty with respect to the
selection of such currency brokers or banking institutions with which the Trust
deals or for their failure to comply with the terms of any contract or option.
5.8 Other Authorized Payments. For other authorized transactions of the
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Trust, or other obligations of the Trust incurred for proper Trust purposes;
provided that before making any such payment the Bank will also receive a
certified copy of a resolution of the Board signed by an Authorized Person
(other than the Person certifying such resolution) and certified by its
Secretary or Associate Secretary, naming the person or persons to whom such
payment is to be made, and either describing the transaction for which payment
is to be made and declaring it to be an authorized transaction of the Trust, or
specifying the amount of the obligation for which payment is to be made, setting
forth the
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purpose for which such obligation was incurred and declaring such purpose to be
a proper purpose.
5.9 Termination. Upon the termination of this Agreement pursuant to
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Section 14 hereof.
6. Securities.
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6.1 Segregation and Registration.
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(a) Except as otherwise provided herein, and except for securities
to be delivered to any subcustodian appointed pursuant to Section 13.2 hereof,
the Bank as custodian, on behalf of each series or portfolio will receive and
hold pursuant to the provisions hereof, in a separate account or accounts and
physically segregated at all times from those of other persons, any and all
Portfolio Securities which may now or hereafter be delivered to it by or for the
account of the Trust. All such Portfolio Securities will be held or disposed of
by the Bank for, and subject at all times to, the instructions of the Trust
pursuant to the terms of this Agreement. Subject to the specific provisions
herein relating to Portfolio Securities that are not physically held by the
Bank, the Bank will register all Portfolio Securities (unless otherwise directed
by Proper Instructions or an Officers' Certificate), in the name of a registered
nominee of the Bank as defined in the Internal Revenue Code and any Regulations
of the Treasury Department issued thereunder, and will execute and deliver all
such certificates in connection therewith as may be required by such laws or
regulations or under the laws of any state. The Bank will use its best efforts
to the end that the specific Portfolio Securities held by it hereunder will be
at all times identifiable.
(b) The Trust will from time to time furnish to the Bank
appropriate instruments to enable it to hold or deliver in proper form for
transfer, or to register in the name of its registered nominee, any Portfolio
Securities which may from time to time be registered in the name of the Trust.
6.2 Voting and Proxies. Neither the Bank nor any nominee of the Bank
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will vote any of the Portfolio Securities held hereunder, except in accordance
with Proper Instructions or an Officers' Certificate. The Bank will execute and
deliver, or cause to be executed and delivered, to the Trust all notices,
proxies and proxy soliciting materials with respect to such Securities, such
proxies to be executed by the registered holder of such Securities (if
registered otherwise than in the name of the Trust), but without indicating the
manner in which such proxies are to be voted.
6.3 Book-Entry System. Provided the Bank has received a certified copy
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of a resolution of the Board specifically approving deposits of Trust assets in
the Book-Entry System, and such approval has not been withdrawn:
(a) The Bank may keep Portfolio Securities in the Book-Entry
System provided that such Portfolio Securities are represented in an account
("Account") of the Bank (or its agent) in such System which shall not include
any assets of the Bank (or such agent) other than assets held as a fiduciary,
custodian, or otherwise for customers;
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(b) The records of the Bank (and any such agent) with respect to
the Trust's participation in the Book-Entry System through the Bank (or any such
agent) will identify by book entry Portfolio Securities which are included with
other securities deposited in the Account and shall at all times during the
regular business hours of the Bank (or such agent) be open for inspection by
duly authorized officers, employees or agents of the Trust. Where securities are
transferred to the Trust's account, the Bank shall also, by book entry or
otherwise, identify as belonging to the trust a quantity of securities in
fungible bulk of securities (i) registered in the name of the Bank or its
nominee, or (ii) shown on the Bank's account on the books of the Federal Reserve
Bank;
(c) The Bank (or its agent) shall pay for securities purchased for
the account of the Trust or shall pay cash collateral against the return of
Portfolio Securities loaned by the Trust upon (i) receipt of advice from the
Book-Entry System that such Securities have been transferred to the Account, and
(ii) the making of an entry on the records of the Bank (or its agent) to reflect
such payment and transfer for the account of the Trust. The Bank (or its agent)
shall transfer securities sold or loaned for the account of the Trust upon:
(i) Receipt of advice from the Book-Entry System that
payment for securities sold or payment of the initial cash collateral against
the delivery of securities loaned by the Trust has been transferred to the
Account; and
(ii) The making of an entry on the records of the Bank (or
its agent) to reflect such transfer and payment for the account of the Trust.
Copies of all advice from the Book-Entry System of transfers of securities for
the account of the Trust shall identify the Trust, be maintained for the Trust
by the Bank and shall be provided to the Trust at its request. The Bank shall
send the Trust a confirmation, as defined by Rule 17f-4 of the 1940 Act, of any
transfers to or from the account of the Trust;
(d) The Bank will promptly provide the Trust with any report
obtained by the Bank or its agent on the Book-Entry System's accounting system,
internal accounting control and procedures for safeguarding securities deposited
in the Book-Entry System;
(e) The Bank shall be liable to the Trust for any loss or damage
to the Trust resulting from use of the Book-Entry System by reason of any
negligence, willful misfeasance or bad faith of the Bank or any of its agents or
of any of its or their employees or from any reckless disregard by the Bank or
any such agent of its duty to use its best efforts to enforce such rights as it
may have against the Book-Entry System; at the election of the Trust, it shall
be entitled to be subrogated for the Bank in any claim against the Book-Entry
System or any other person which the Bank or its agent may have as a consequence
of any such loss or damage if and to the extent that the Trust has not been made
whole for any loss or damage;
6.4 Use of a Depository. Provided the Bank has received a certified
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copy of a resolution of the Board specifically approving deposits in DTC or
other such Depository, approval not having been withdrawn:
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(a) The Bank may use a Depository to hold, receive, exchange,
release, lend, deliver and otherwise deal with Portfolio Securities including
stock dividends, rights and other items of like nature, and to receive and remit
to the Bank on behalf of the Trust all income and other payments thereon and to
take all steps necessary and proper in connection with the collection thereof;
(b) Registration of Portfolio Securities may be made in the name
of any nominee or nominees used by such Depository;
(c) Payment for securities purchased and sold may be made through
the clearing medium employed by such Depository for transactions of participants
acting through it. Upon any purchase of Portfolio Securities, payment will be
made only upon delivery of the securities to or for the account of the Trust and
the Trust shall pay cash collateral against the return of Portfolio Securities
loaned by the Trust only upon delivery of the Securities to or for the account
of the Trust; and upon any sale of Portfolio Securities, delivery of the
Securities will be made only against payment thereof or, in the event Portfolio
Securities are loaned, delivery of Securities will be made only against receipt
of the initial cash collateral to or for the account of the Trust; and
(d) The Bank shall be liable to the Trust for any loss or damage
to the Trust resulting from use of a Depository by reason of any gross
negligence, willful misfeasance or bad faith of the Bank or its employees, or
from any reckless disregard by the Bank of its duty to use its best efforts to
enforce such rights as it may have against a Depository. In this connection, the
Bank shall use its best efforts to ensure that:
(i) The Depository obtains replacement of any certificated
Portfolio Security deposited with it in the event such Security is lost,
destroyed, wrongfully taken or otherwise not available to be returned to the
Bank upon its request;
(ii) Any proxy materials received by a Depository with
respect to Portfolio Securities deposited with such Depository are forwarded
immediately to the Bank for prompt transmittal to the Trust;
(iii) Such Depository immediately forwards to the Bank
confirmation of any purchase or sale of Portfolio Securities and of the
appropriate book entry made by such Depository to the Trust's account;
(iv) Such Depository prepares and delivers to the Bank such
records with respect to the performance of the Bank's obligations and duties
hereunder as may be necessary for the Trust to comply with the recordkeeping
requirements of Section 31(a) of the 1940 Act and Rule 31(a) thereunder; and
(v) Such Depository delivers to the Bank and the trust all
internal accounting control reports, whether or not audited by an independent
public accountant, as well as such other reports as the Trust may reasonably
request in order to verify the Portfolio Securities held by such Depository.
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6.5 Use of Book-Entry System for Commercial Paper. Provided (i) the Bank
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has received a certified copy of a resolution of the Board specifically
approving participation in a system maintained by the Bank for the holding of
commercial paper in book-entry form ("Book-Entry Paper"), and (ii) for each year
following such approval the Board has received and approved the arrangements,
upon receipt of Proper Instructions and upon receipt of confirmation from an
Issuer (as defined below) that the Trust has purchased such Issuer's Book-entry
Paper, the Bank shall issue and hold in book-entry form, on behalf of the Trust,
commercial paper issued by issuers with whom the Bank has entered into a book-
entry agreement (the "Issuers"). In maintaining its Book-entry Paper System, the
Bank agrees that:
(a) The Bank will maintain all Book-entry Paper held by the Trust
in an account of the Bank that includes only assets held by it for customers;
(b) The records of the Bank with respect to the Trust's purchase
of Book-entry Paper through the Bank will identify, by book-entry, Commercial
Paper belonging to the trust which is included in the Book-Entry Paper System
and shall at all times during the regular business hours of the Bank be open for
inspection by duly authorized officers, employees or agents of the Trust;
(c) The Bank shall pay for Book-Entry Paper purchased for the
account of the Trust upon contemporaneous (i) receipt of advice from the Issuer
that such sale of Book-Entry Paper has been effected, and (ii) the making of an
entry on the records of the Bank to reflect such payment and transfer for the
account of the Trust;
(d) The Bank shall cancel such Book-Entry Paper obligation upon
the maturity thereof upon contemporaneous (i) receipt of advice that payment for
such Book-Entry Paper has been transferred to the Trust, and (ii) the making of
an entry on the records of the Bank to reflect such payment for the account of
the Trust;
(e) The Bank shall transmit to the Trust a transaction journal
confirming each transaction in Book-Entry Paper for the account of the Trust on
the next business day following the transaction; and
(f) The Bank will send to the Trust such reports on its system of
internal accounting control with respect to the Book-Entry Paper System as the
Trust may reasonably request from time to time.
6.6 Use of Immobilization Programs. Provided (i) the Bank has received
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a certified copy of a resolution of the Board specifically approving the
maintenance of Portfolio Securities in an immobilization program operated by a
bank which meets the requirements of Section 26(a)(1) of the 1940 Act, and (ii)
for each year following such approval the Board has reviewed and approved the
arrangements, and has not delivered an Officer's Certificate to the Bank
indicating that the Board has withdrawn its approval, the Bank shall enter into
such immobilization program with such bank acting as a subcustodian hereunder.
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6.7 Eurodollar CDs. Any Portfolio Securities which are Eurodollar CDs
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may be physically held by the European branch of the U.S. banking institution
that is the issuer of such Eurodollar CD (a "European Branch"), provided that
such Securities are identified on the books of the Bank as belonging to the
Trust and that the books of the Bank identify the European Branch holding such
Securities. Notwithstanding any other provision of this Agreement to the
contrary, except as stated in the first sentence of this subsection 6.7, the
Bank shall be under no other duty with respect to such Eurodollar CDs belonging
to the Trust, and shall have no liability to the Trust or its shareholders with
respect to the actions, inactions, whether negligent or otherwise of such
European Branch in connection with such Eurodollar CDs, except for any loss or
damage to the Trust resulting from the Bank's own gross negligence, willful
misfeasance or bad faith in the performance, of its duties hereunder.
6.8 Options and Futures Transactions.
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(a) Puts and Calls Traded on Securities Exchanges, NASDAQ or Over-
the-Counter.
(i) The Bank shall take action as to put options ("puts")
and call options ("calls") purchased or sold (written) by the Trust regarding
escrow or other arrangements (i) in accordance with the provisions of any
agreement entered into upon receipt of Proper Instructions between the Bank, any
broker-dealer registered under the Exchange Act and a member of the National
Association of Securities Dealers, Inc. (the "NASD"), and, if necessary, the
Trust relating to the compliance with the rules of the Options Clearing
Corporation and of any registered national securities exchange, or of any
similar organization or organizations.
(ii) Unless another agreement requires it to do so, the Bank
shall be under no duty or obligation to see that the Trust has deposited or is
maintaining adequate margin, if required, with any broker in connection with any
option, nor shall the Bank be under duty or obligation to present such option to
the broker for exercise unless it receives Proper Instructions from the Trust.
The Bank shall have no responsibility for the legality of any put or call
purchased or sold on behalf of the Trust, the propriety of any such purchase or
sale, or the adequacy of any collateral delivered to a broker in connection with
an option or deposited to or withdrawn from a Segregated Account (as defined in
subsection 6.9 below). The Bank specifically, but not by way of limitation,
shall not be under any duty or obligation to: (x) periodically check or notify
the Trust that the amount of such collateral held by a broker or held in a
Segregated Account is sufficient to protect such broker of the trust against any
loss; (y) effect the return of any collateral delivered to a broker; or (z)
advise the Trust that any option it holds, has or is about to expire. Such
duties or obligations shall be the sole responsibility of the Trust.
(b) Puts, Calls and Futures Traded on Commodities Exchanges.
(i) The Bank shall take action as to puts, calls and futures
contracts ("Futures") purchased or sold by the Trust in accordance with the
provisions of any agreement among the Trust, the Bank and a Futures Commission
Merchant registered
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under the Commodity Exchange Act, relating to compliance with the rules of the
Commodity Futures Trading Commission and/or any Contract Market, or any similar
organization or organizations, regarding account deposits in connection with
transactions by the Trust.
(ii) The responsibilities and liabilities of the Bank as to
futures, puts and calls traded on commodities exchanges, any Futures Commission
Merchant account and the Segregated Account shall be limited as set forth in
subparagraph (a)(2) of this Section 6.8 as if such subparagraph referred to
Futures Commission Merchants rather than brokers, and Futures and puts and calls
thereon instead of options.
6.9 Segregated Account. The Bank, upon receipt of Proper Instructions,
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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 Proper 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
Trust, 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 Trust;
(b) For the purpose of segregating cash or securities in
connection with options purchased or written by the trust or commodity futures
purchased or written by the Trust;
(c) For the deposit of any Portfolio Securities which the Trust
has agreed to sell on a forward commitment basis or other purpose to which the
Release applies;
(d) For other proper corporate purposes, but only, in the case of
the clause (e), upon receipt of, in addition to Proper Instructions, a certified
copy of a resolution of the Board, or of the Executive Committee signed by an
officer of the Trust 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 Proper Instructions only:
(i) In accordance with the provisions of any agreements
referenced in (a) or (b) above;
(ii) For sale or delivery to meet the Trust's obligations
under outstanding firm commitment or when-issued agreements for
the purchase of Portfolio Securities and under reverse repurchase
agreements;
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(iii) For exchange for other liquid assets of equal or greater value
deposited in the Segregated Account;
(iv) To the extent that the Trust'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 Trust's
obligations thereunder are met from assets of the Trust other than those
in the Segregated Account; or
(v) For delivery upon settlement of a forward commitment agreement
for the sale of Portfolio Securities.
6.10 Interest Bearing Call or Time Deposits. The Bank shall, upon receipt
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of Proper Instructions relating to the purchase by the Trust of interest-bearing
fixed-term and call deposits, transfer cash, by wire or otherwise, in such
amounts and to such bank or banks as shall be indicated in such Proper
Instructions. The Bank shall include in its records with respect to the assets
of the Trust appropriate notation as to the amount of each such deposit, the
banking institution with which such deposit is made (the "Deposit Bank"), and
shall retain such forms of advice or receipt evidencing the deposit, if any, as
may be forwarded to the Bank by the Deposit Bank. Such deposits shall be deemed
Portfolio Securities of the Trust and the responsibility of the Bank therefore
shall be the same as and no greater than the Bank's responsibility in respect of
other Portfolio Securities of the Trust.
6.11 Transfer of Securities. The Bank will transfer, exchange, deliver or
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release Portfolio Securities held by it hereunder, insofar as such Portfolio
Securities are available for such purpose, provided that before making any
transfer, exchange, delivery or release under this Section the Bank will receive
Proper Instructions requesting such transfer, exchange or delivery stating that
it is for a purpose permitted under the terms of this Section 6.11, specifying
the applicable subsection, or describing the purpose of the transaction with
sufficient particularity to permit the Bank to ascertain the applicable
subsection, only:
(a) Upon sales of Portfolio Securities for the account of the Trust,
against contemporaneous receipt by the Bank of payment therefor in full, each
such payment to be in the amount of the sale price shown in a broker's
confirmation of sale of the Portfolio Securities received by the Bank before
such payment is made, as confirmed in the Proper Instructions received by the
Bank before such payment is made;
(b) In exchange for or upon conversion into other securities alone or
other securities and cash pursuant to any plan of merger, consolidation,
reorganization, share split-up, change in par value, recapitalization or
readjustment or otherwise, upon exercise of subscription, purchase or sale or
other similar rights represented by such Portfolio Securities, or for the
purpose of tendering shares in the event of a tender offer therefor, provided
however that in the event of an offer of exchange, tender offer, or other
exercise of rights requiring the physical tender or delivery of Portfolio
Securities, the Bank shall have no liability for failure to so tender in a
timely manner unless such Proper Instructions
12
are received by the Bank at least two business days prior to the date required
for tender, and unless the Bank (or its agent or subcustodian hereunder) has
actual possession of such Security at least two business days prior to the date
of tender;
(c) Upon conversion of Portfolio Securities pursuant to their terms into
other securities;
(d) For the purpose of redeeming in kind shares of the Trust upon
authorization from the Trust;
(e) In the case of option contracts owned by the Trust, for presentation
to the endorsing broker;
(f) When such Portfolio Securities are called, redeemed or retired or
otherwise become payable;
(g) For the purpose of effectuating the pledge of Portfolio Securities
held by the Bank in order to collateralize loans made to the Trust by any bank,
including the Bank; provided, however, that such Portfolio Securities will be
released only upon payment to the Bank for the account of the Trust of the
moneys borrowed, except that in cases where additional collateral is required to
secure a borrowing already made, and such fact is made to appear in the Proper
Instructions, further Portfolio Securities may be released for that purpose
without any such payment. In the event that any such pledged Portfolio
Securities are held by the Bank, they will be so held for the account of the
lender, and after notice to the Trust from the lender in accordance with the
normal procedures of the lender, that an event of deficiency or default on the
loan has occurred, the Bank may deliver such pledged Portfolio Securities to or
for the account of the lender;
(h) For the purpose of releasing certificates representing Portfolio
Securities, against contemporaneous receipt by the Bank of the fair market value
of such security, as set forth in the Proper Instructions received by the Bank
before such payment is made;
(i) For the purpose of delivering securities lent by the Trust to a bank
or broker dealer, but only against receipt in accordance with street delivery
custom except as otherwise provided herein, of adequate collateral as agreed
upon from time to time by the Trust and the Bank, and upon receipt of payment in
connection with any repurchase agreement relating to such securities entered
into by the Trust;
(j) For other authorized transactions of the Trust or for other proper
corporate purposes; provided that before making such transfer, the Bank will
also receive a certified copy of resolutions of the Board, signed by an
authorized officer of the Trust (other than the officer certifying such
resolution) and certified by its Secretary or Assistant Secretary, specifying
the Portfolio Securities to be delivered, setting forth the transaction in or
purpose for which such delivery is to be made, declaring such transaction to be
an authorized transaction of the Trust or such purpose to be a proper corporate
purpose, and naming the person or persons to whom delivery of such securities
shall be made; and
13
(k) Upon termination of this Agreement as hereinafter set forth pursuant
to Section 8 and Section 14 of this Agreement.
As to any deliveries made by the Bank pursuant to subsections (a), (b),
(c), (e), (f), (g), (h) and (i), securities or cash receivable in exchange
therefor shall be delivered to the Bank.
7. Redemptions. In the case of payment of assets of the Trust held by the
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Bank in connection with redemptions and repurchases by the Trust of outstanding
common shares, the Bank will rely on notification by the Trust's transfer agent
of receipt of a request for redemption and certificates, if issued, in proper
form for redemption before such payment is made. Payment shall be made in
accordance with the Agreement and Declaration of Trust and By-laws of the
Trust, from assets available for said purpose.
8. Merger, Dissolution, etc. of Trust. In the case of the following
-----------------------------------
transactions, not in the ordinary course of business, namely, the merger of the
Trust into or the consolidation of the Trust with another investment company,
the sale by the Trust of all, or substantially all, of its assets to another
investment company, or the liquidation or dissolution of the Trust and
distribution of its assets, the Bank will deliver the Portfolio Securities held
by it under this Agreement and disburse cash only upon the order of the trust
set forth in an Officers' Certificate, accompanied by a certified copy of a
resolution of the Board authorizing any of the foregoing transactions.
9. Actions of Bank Without Prior Authorization. Notwithstanding anything
-------------------------------------------
herein to the contrary, unless and until the Bank receives an Officers'
Certificate to the contrary, it will without prior authorization or instruction
of the Trust or the transfer agent:
9.1 Endorse for collection and collect on behalf of and in the name of
the Trust all checks, drafts, or other negotiable or transferable instruments or
other orders for the payment of money received by it for the account of the
Trust and hold for the account of the Trust all income, dividends, interest and
other payments or distribution of cash with respect to the Portfolio Securities
held thereunder;
9.2 Present for payment all coupons and other income items held by it for
the account of the Trust which call for payment upon presentation and hold the
cash received by it upon such payment for the account of the Trust;
9.3 Receive and hold for the account of the Trust all securities received
as a distribution on Portfolio Securities as a result of a stock dividend, share
split-up, reorganization, recapitalization, merger, consolidation, readjustment,
distribution of rights and similar securities issued with respect to any
Portfolio Securities held by it hereunder.
9.4 Execute as agent on behalf of the Trust all necessary ownership and
other certificates and affidavits required by the Internal Revenue Code or the
regulations of the Treasury Department issued thereunder, or by the laws of any
state, now or hereafter in effect, inserting the trust's name on such
certificates as the owner of the securities covered thereby, to the extent it
may lawfully do so and as may be required to obtain payment in respect thereof.
The Bank will execute and deliver such certificates in connection with
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Portfolio Securities delivered to it or by it under this Agreement as may be
required under the provisions of the Internal Revenue Code and any Regulations
of the Treasury Department issued thereunder, or under the laws of any State;
9.5 Present for payment all Portfolio Securities which are called,
redeemed, retired or otherwise become payable, and hold cash received by it upon
payment for the account of the Trust; and
9.6 Exchange interim receipts or temporary securities for definitive
securities.
10. Collections and Defaults. The Bank will use all reasonable effort to
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collect any funds which may to its knowledge become collectible arising from
Portfolio Securities, including dividends, interest and other income, and to
transmit to the Trust notice actually received by it of any call for redemption,
offer of exchange, right of subscription, reorganization or other proceedings
affecting such Securities. If Portfolio Securities upon which such income is
payable are in default or payment is refused after due demand or presentation,
the Bank will notify the Trust in writing of any default or refusal to pay
within two business days from the day on which it receives knowledge of such
default or refusal. In addition, the Bank will send the Trust a written report
once each month showing any income on any Portfolio Security held by it which is
more than ten days overdue on the date of such report and which has not
previously been reported.
11. Maintenance of Records.
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11.1 The Bank will maintain records with respect to transactions for which
the Bank is responsible pursuant to the terms and conditions of this Agreement,
and in compliance with the applicable rules and regulations of the 1940 Act and
will furnish the Trust daily with a statement of condition of the Trust.
11.2 The Bank will furnish to the Trust at the end of every month, and at
the close of each quarter of the Trust's fiscal year, a list of the Portfolio
Securities and the aggregate amount of cash held by it for the Trust.
11.3 The books and records of the Bank pertaining to its actions under
this Agreement and reports by the Bank or its independent accountants concerning
its accounting system, procedures for safeguarding securities and internal
accounting controls will be open to inspection and audit at reasonable times by
officers or auditors, or legal counsel employed by the Trust and will be
preserved by the Bank in the manner and in accordance with the applicable rules
and regulations under the 1940 Act.
11.4 The Bank shall keep the books of account and render statements or
copies from time to time as reasonably requested by the Treasurer or any
executive officer of the Trust.
11.5 The Bank shall assist generally in the preparation of reports to
shareholders and others, audits of accounts, and other ministerial matters of
like nature.
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12. Concerning the Bank.
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12.1 Performance of Duties and Standard of Care.
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(a) The Bank shall use reasonable care in performing its duties
hereunder. In the performance of such duties, the Bank will be protected and not
be liable, and will be indemnified and held harmless for any loss to the Trust
except in the case of the negligence, willful misconduct, bad faith, reckless
disregard of duties or obligations hereunder, including knowing violations of
law, or fraud of the Bank, or of its officers, employees, or agents, except as
set forth in paragraph 12.1 (d) hereof.
(i) On issues that are legal in nature, the Bank 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 Bank shall pay the fees and expenses of such counsel, unless such counsel is
the Trust's counsel;
(ii) 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 Officers' Certificate, Proper Instructions, or resolutions
of the Board, reasonably believed by the Bank to be genuine, and
(b) The Bank will be under no duty or obligation to inquire into:
(i) The validity of the issue of any Portfolio Securities purchased
by or for the Trust, the legality of the purchases thereof or the propriety of
the price incurred therefor;
(ii) The legality of any sale of any Portfolio Securities by or for
the Trust or the propriety of the amount for which the same are sold;
(iii) The legality of an issue or sale of any common shares of the
Trust or the sufficiency of the amount to be received therefor;
(iv) The legality of the repurchase of any common shares of the Trust
or the propriety of the amount to be paid therefor;
(v) The legality of the declaration of any dividend by the Trust or
the legality of the distribution of any Portfolio Securities as payment in kind
of such dividend; and
(vi) Any property or moneys of the Trust unless and until received by
it, and any such property or moneys delivered or paid by it pursuant to the
terms hereof.
(c) The Bank will not be under any duty or obligation to ascertain
whether any Portfolio Securities at any time delivered to or held by it for the
account of the Trust are such as may properly be held by the Trust under the
provisions of its Agreement and
16
Declaration of Trust, By-laws, any federal or state statutes or any rule or
regulation of any governmental agency.
(d) Notwithstanding anything in this Agreement to the contrary, in no
event shall the Bank 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) Notwithstanding anything in this Agreement to the contrary, in no
event shall the Bank be liable hereunder or to any third party for any losses or
damages of any kind resulting from acts of God, earthquakes, fires, floods,
storms or other disturbances of nature, epidemics, strikes, riots,
nationalization, expropriation, currency restrictions, acts of war, civil war or
terrorism, insurrection, nuclear fusion, fission or radiation, the interruption,
loss or malfunction of utilities, transportation, or computers (hardware or
software) and computer facilities, the unavailability of energy sources and
other similar happenings or events except as results from the Bank's own
negligence.
(f) Notwithstanding anything in this Agreement to the contrary, the
Bank shall have in place reasonable business continuity and disaster recovery
procedures and systems and shall provide the Trust, at least annually, test
results of such procedures and systems.
12.2 Agents and Subcustodians.
-------------------------
(a) The Bank may employ agents in the performance of its duties
hereunder and shall be responsible for the acts and omissions of such agents as
if performed by the Bank hereunder.
(b) Subcustodians.
(i) Upon receipt of Proper Instructions, the Bank may employ
subcustodians, provided that any such subcustodian meets at least the minimum
qualifications required by Section 17(f)(1) of the 1940 Act to act as a
custodian of the Trust's assets with respect to property of the Trust held in
the United States.
(ii) Assets held by subcustodians in countries other than the
United States shall be held pursuant to Rule 17f-5 of the 1940 Act, and pursuant
to such terms and conditions as more fully set forth in Exhibit B.
(iii) The Bank shall have no liability to the Trust or any
other person by reason of any act or omission of any domestic subcustodian and
the Trust shall indemnify the Bank and hold it harmless from and against all
actions, suits and claims, arising directly or indirectly out of the performance
of any subcustodian. Upon request of the Bank, the Trust shall assume the entire
defense of any action, suit, or claim subject to the foregoing indemnity. The
Trust shall pay all fees and expenses of any subcustodian.
12.3 Insurance. The Bank shall at all times maintain insurance
----------
coverages adequate for the nature of its operations, including directors and
officers, errors and omissions, and fidelity bond insurance coverages. The Bank
shall have the Trust named as
17
a Certificate Holder on each of these coverages, and provide MassMutual with
Certificates of Insurance at each policy renewal. The Certificates shall provide
that MassMutual receive a minimum of twenty (20) days' notice of cancellation,
non-renewal, or material change of policy coverages. The Bank shall provide
MassMutual with copies of its insurance policies, upon request. If at any time,
due to a material adverse change in policy coverages, MassMutual reasonably
believes that such coverages are insufficient in any material respect, or if any
policy is placed with an insurer with an A.M. Best rating of less than A 12, the
Bank shall take reasonable steps to satisfy MassMutual's concerns.
12.4. Fees and Expenses of Bank. The Trust will pay or reimburse the Bank
-------------------------
from time to time for any transfer taxes payable upon transfer of Portfolio
Securities made hereunder, and for all necessary proper disbursements, expenses
and charges made or incurred by the Bank in the performance of this Agreement
(including any duties listed on any Schedule hereto, if any) including any
indemnities for any loss, liabilities or expense to the Bank as provided above.
For the services rendered by the Bank hereunder, the Trust will pay to the Bank
such compensation or fees at such rate and at such times as shall be agreed upon
in writing by the parties from time to time. The Bank will also be entitled to
reimbursement by the Trust for all reasonable expenses incurred in conjunction
with termination of this Agreement by the Trust.
12.5 Advances by Bank. The Bank may, in its sole discretion, advance
-----------------
funds on behalf of the Trust to make any payment permitted by this Agreement
upon receipt of any proper authorization required by this Agreement for such
payments by the Trust. Should such a payment or payments, with advanced funds,
result in an overdraft (due to insufficiencies of the Trust's account with the
Bank, or for any other reason other than as a result of a mistake by the Bank),
such overdraft or related indebtedness, shall be deemed to be a loan made by the
Bank to the Trust payable on demand and bearing interest at the current rate
charged by the Bank for such loans unless the Trust shall provide the Bank with
agreed upon compensating balances. The Trust agrees that the Bank shall have a
continuing lien and security interest to the extent of any overdraft or
indebtedness, in and to any property at any time held by it for the Trust's
benefit or in which the Trust has an interest and which is then in the Bank's
possession or control (or in the possession or control of any third party acting
on the Bank's behalf). The Trust authorizes the Bank, in its sole discretion, at
any time to charge any overdraft or indebtedness, together with interest due
thereon against any balance of account standing to the credit of the Trust on
the Bank's books.
13. Termination.
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13.1 This Agreement may be terminated at any time without penalty upon
ninety (90) days' written notice delivered by either party to the other by means
of registered mail, and upon the expiration of such ninety (90) days this
Agreement will terminate; provided, however, that the effective date of such
termination may be postponed to a date not more than thirty (30) additional days
from the date of delivery of such notice:
(a) by the Bank in order to prepare for the transfer by the Bank of all
of the assets of the Trust held hereunder, provided that the Bank has not acted
in a manner that would constitute negligence, gross negligence, willful
misconduct, bad faith or fraud, and
18
(b) by the Trust in order to give the Trust an opportunity to make
suitable arrangements for a successor custodian, provided however, that the
Trust is not in breach of a material term or condition of this Agreement.
At any time after the termination of this Agreement, the Trust will, at its
request, have access to the records of the Bank relating to the performance of
its duties as custodian. This Agreement shall also terminate upon the delivery
of the Trust's Portfolio Securities, the disbursement of cash, and the payment
of fees and expenses of the Bank in the case of certain transactions described
in Section 8 hereof.
13.2 In the event of the termination of this Agreement, the Bank will
immediately upon receipt or transmittal, as the case may be, of notice of
termination, commence and prosecute diligently to completion the transfer of all
cash and the delivery of all Portfolio Securities duly endorsed and all records
maintained under Section 11 hereof to the successor custodian when appointed by
the Trust. The obligation of the Bank to deliver and transfer over the assets of
the Trust held by it directly to such successor custodian will commence as soon
as such successor is appointed and will continue until completed as aforesaid.
13.3 If the Trust does not select a successor custodian within ninety
(90) days from the date of delivery of notice of termination the Bank may,
subject to the provisions of subsection 14.3, deliver the Portfolio Securities
and cash of the Trust held by the Bank to a bank or trust company of its own
selection which meets the requirements of Section 17(f)(1) of the 1940 Act and
has a reported capital, surplus and undivided profits aggregating not less than
$2,000,000, to be held as the property of the Trust under terms similar to those
on which they were held by the Bank, whereupon such bank or trust company so
selected by the Bank will become the successor custodian of such assets of the
Trust with the same effect as though selected by the Board.
13.4 Prior to the expiration of ninety (90) days after notice of
termination has been given, the Trust may furnish the Bank with an order of the
Trust advising that a successor custodian cannot be found willing and able to
act upon reasonable and customary terms and that there has been submitted to the
shareholders of the Trust the question of whether the Trust will be liquidated
or will function without a custodian for the assets of the Trust held by the
Bank. In that event the Bank will deliver the Portfolio Securities and cash of
the Trust held by it, subject as aforesaid, in accordance with one of such
alternatives which may be approved by the requisite vote of shareholders, upon
receipt by the Bank of a copy of the minutes of the meeting of shareholders at
which action was taken, certified by the Trust's Secretary and an opinion of
counsel to the Trust in form and content satisfactory to the Bank.
13.5 Notwithstanding the above, the Trust may terminate this Agreement
without penalty at anytime after the Bank receives a rating of four and one-half
(4.5), on a scale of 1-5 with one (1) being the best rating and five (5) the
worst, by Xxxxx Consulting Analysts, a Division of the Xxxxxxxx Company.
14. Confidentiality. Both parties hereto agree than any non-public
---------------
information, including trade secrets, obtained hereunder concerning the other
party is confidential and
19
may not be disclosed to any other person, firm, corporation, association, or
other entity, without the prior written consent of the other party, except as
may be required by applicable law or at the request of a governmental agency.
The parties further agree, that without waiving any other legal or equitable
rights or remedies, that a breach of this provision would irreparably damage the
other party and accordingly agree that each of them is entitled, without bond or
other security, to an injunction or injunctions to prevent breaches of this
provision.
15. Notices. Any notice or other instrument in writing authorized or
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required by this Agreement to be given to either party hereto will be
sufficiently given if addressed to such party and mailed or delivered to it at
its office at the address set forth below; namely:
(a) In the case of notices sent to the Trust to:
MassMutual Institutional Trusts
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
(b) In the case of notices sent to the Bank to:
Investors Bank & Trust Company
X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxx
or if notices to either, a copy to:
MassMutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Second Vice President and Treasurer
or at such other place as such party may from time to time designate in
writing.
16. Amendments. This Agreement constitutes the entire agreement may not be
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altered or amended, except by an instrument in writing, executed by both
parties, and in the case of the trust, such alteration or amendment will be
authorized and approved by its Board.
17. Parties. This Agreement will be binding upon and shall inure to the
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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 Bank or by the Bank without the written
consent of the trust, authorized and approved by its Board; and provided further
that termination proceedings pursuant to Section 14 hereof will not be deemed to
be an assignment within the meaning of this provision.
20
18. Governing Law. This Agreement and all performance hereunder will be
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governed by the laws of the Commonwealth of Massachusetts.
19. 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.
20. 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 Borad 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 charges 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.
21. Necessary Action. The Bank shall take all reasonable action in
----------------
connection with the transfer of assets from the Bank of New York to the Bank in
a timely and orderly manner, provided however, that the Bank shall have no
liability for the action or inaction of the Bank of New York.
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first written above.
MASSMUTUAL INSTITUTIONAL FUNDS
By:
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Xxxxx X. Xxxxx
Vice President
INVESTORS BANK & TRUST COMPANY
By:
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Name:
Title:
