Exhibit 8(d)
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 Blend 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:
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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.
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 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.
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(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.
5. PERFORMANCE BY THE BANK
(A) General
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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
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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, rights 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.
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(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
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(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.
(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
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(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
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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.
(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
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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
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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.
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(G) Voting and other Action
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(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.
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.
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7. USE OF FOREIGN CUSTODIANS
(A) Authorization
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(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 l7f-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 Eligibile 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.
(B) Provision of Information Regarding Foreign Custodians and Securities
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Depositories
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(i) The Bank shall use its best efforts to assist the Fund in obtaining
following:
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(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.
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(C) Segregation and Identification of Assets
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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.
(D) Instructions to Eligible Foreign Custodians; Instructions to Eligible
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Foreign Securities Depositories
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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.
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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.
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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.
(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.
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(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
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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
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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;
(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;
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(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.
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(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 Blend Fund 00-0000000.
(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.
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(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.
(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
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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.
(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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized.
CITIBANK, N.A. CITICORP
BY: /s/ Xxxxx X. Xxxxxxxx BY: /s/ Xxxxxxx X. Xxxxx
NAME: Xxxxx X. Xxxxxxxx NAME: Xxxxxxx X. Xxxxx
TITLE: Vice President North American TITLE: Vice President
Investors Services
000 Xxxx Xxxxxx/00xx Xxxxx
(000) 000-0000
MML SERIES INVESTMENT FUND ON BEHALF OF MML BLEND FUND
BY: /s/ Xxxxxxx X. Xxxx
NAME: Xxxxxxx X. Xxxx
TITLE: Vice President-Secretary
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