Exhibit 8
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CUSTODY AGREEMENT
AGREEMENT dated as of ______________________, 1997, between MML SERIES
INVESTMENT FUND, a business trust organized under the laws of the Commonwealth
of Massachusetts (the " Trust") on behalf of its series, MML Equity Index Fund
(the "Fund"), having its principal office and place of business at 0000 Xxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000, and BOSTON SAFE DEPOSIT AND TRUST
COMPANY (the "Custodian"), a Massachusetts trust company with its principal
place of business at Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
W I T N E S S E T H:
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That for and in consideration of the mutual promises hereinafter set forth,
the Fund and the Custodian agree as follows:
1. Definitions.
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Whenever used in this Agreement or in any Schedules to this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
(a) "Affiliated Person" shall have the meaning of the term within
Section 2(a)3 of the 1940 Act.
(b) "Authorized Person" shall be deemed to include the Chairman of the
Board of Trustees, the President, and any Vice President, the Secretary,
the Treasurer or any other person, whether or not any such person is an
officer or employee of the Trust, duly authorized by the Board of Trustees
of the Trust to give Oral Instructions and Written Instructions on behalf
of the Fund and listed in the certification annexed hereto as Appendix A or
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such other certification as may be received by the Custodian from time to
time.
(c) "Book-Entry System" shall mean the Federal Reserve/Treasury book-
entry system for United States and federal agency Securities, its successor
or successors and its nominee or nominees.
(d) "Business Day" shall mean any day on which the Fund, the Custodian,
the Book-Entry System and appropriate clearing corporation(s) are open for
business.
(e) "Certificate" shall mean any notice, instruction or other instrument
in writing, authorized or required by this Agreement to be given to the
Custodian, which is actually
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received by the Custodian and signed on behalf of the Fund by any two
Authorized Persons or any two officers thereof.
(f) "Master Trust Agreement" shall mean the Declaration of Trust of the
Trust dated December 19, 1994 as the same may be amended from time to time.
(g) "Depository" shall mean The Depository Trust Company ("DTC"), a
clearing agency registered with the Securities and Exchange Commission
under Section 17(a) of the Securities Exchange Act of 1934, as amended, its
successor or successors and its nominee or nominees, in which the Custodian
is hereby specifically authorized to make deposits. The term "Depository"
shall further mean and include any other person to be named in a
Certificate authorized to act as a depository under the 1940 Act, its
successor or successors and its nominee or nominees.
(h) "Money Market Security" shall be deemed to include, without
limitation, debt obligations issued or guaranteed as to interest and
principal by the government of the United States or agencies or
instrumentalities thereof ("U.S. government securities"), commercial paper,
bank certificates of deposit, bankers' acceptances and short-term corporate
obligations, where the purchase or sale of such securities normally
requires settlement in federal funds on the same day as such purchase or
sale, and repurchase and reverse repurchase agreements with respect to any
of the foregoing types of securities.
(i) "Oral Instructions" shall mean verbal instructions actually received
by the Custodian from a person reasonably believed by the Custodian to be
an Authorized Person.
(j) "Prospectus" shall mean the Fund's current prospectus and statement
of additional information relating to the registration of the Fund's Shares
under the Securities Act of 1933, as amended.
(k) "Shares" refers to shares of beneficial interest of the Fund.
(l) "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness, and other
securities, commodities interests and investments from time to time owned
by the Fund.
(m) "Transfer Agent" shall mean the person which performs the transfer
agent, dividend disbursing agent and shareholder servicing agent functions
for the Fund.
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(n) "Written Instructions" shall mean a written communication actually
received by the Custodian from a person reasonably believed by the
Custodian to be an Authorized Person by any system, including, without
limitation, electronic transmissions, facsimile and telex.
(o) The "1940 Act" refers to the Investment Company Act of 1940, and the
Rules and Regulations thereunder, all as amended from time to time.
2. Appointment of Custodian.
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(a) The Fund hereby constitutes and appoints the Custodian as custodian
of all the Securities and monies at the time owned by or in the possession
of the Fund during the period of this Agreement.
(b) The Custodian hereby accepts appointment as such custodian and agrees
to perform the duties thereof as hereinafter set forth.
3. Compensation
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The Custodian agrees to look solely to Mellon Equity Associates for all of
its compensation for services rendered hereunder.
4. Custody of Cash and Securities.
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(a) Receipt and Holding of Assets.
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The Fund will deliver or cause to be delivered to the Custodian all
Securities and monies owned by it at any time during the period of this
Agreement. The Custodian will not be responsible for such Securities and
monies until actually received by it. The Fund shall instruct the Custodian
from time to time in its sole discretion, by means of Written Instructions,
or, in connection with the purchase or sale of Money Market Securities, by
means of Oral Instructions confirmed in writing in accordance with
Section 11(h) hereof or Written Instructions, as to the manner in which and
in what amounts Securities and monies are to be deposited on behalf of the
Fund in the Book-Entry System or the Depository; provided, however, that
prior to the deposit of Securities of the Fund in the Book-Entry System or
the Depository, including a deposit in connection with the settlement of a
purchase or sale, the Custodian shall have received a Certificate
specifically approving such deposits by the Custodian in the Book-Entry
System or the Depository. Securities and monies of the Fund deposited in
the Book-Entry System or the Depository will be represented in accounts
which include only assets held by the Custodian for customers,
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including but not limited to accounts for which the Custodian acts in a
fiduciary or representative capacity.
(b) Accounts and Disbursements. The Custodian shall establish and
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maintain a separate account for the Fund and shall credit to the separate
account all monies received by it for the account of such Fund and shall
disburse the same only:
1. In payment for Securities purchased for the Fund, as provided in
Section 5 hereof;
2. In payment of dividends or distributions with respect to the
Shares, as provided in Section 7 hereof;
3. In payment of original issue or other taxes with respect to the
Shares, as provided in Section 8 hereof;
4. In payment for Shares which have been redeemed by the Fund, as
provided in Section 8 hereof;
5. Pursuant to Written Instructions setting forth the name and
address of the person to whom the payment is to be made, the amount
to be paid and the purpose for which payment is to be made, provided
that in the event of disbursements pursuant to this sub-section
4(b)(5), the Fund shall indemnify and hold the Custodian harmless
from any claims or losses arising out of such disbursements in
reliance on such Written Instructions which it, reasonably in good
faith, believes to be received from duly Authorized Persons; or
6. In payment of fees and in reimbursement of the expenses and
liabilities of the Custodian attributable to the Fund, as provided in
Section 11(i).
(c) Confirmation and Statements. Promptly after the close of business on
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each day, the Custodian shall furnish the Fund with confirmations and a
summary of all transfers to or from the account of the Fund during said
day. Where securities purchased by the Fund are in a fungible bulk of
securities registered in the name of the Custodian (or its nominee) or
shown on the Custodian's account on the books of the Depository or the
Book-Entry System, the Custodian shall by book entry or otherwise identify
the quantity of those securities belonging to the Fund. At least monthly,
and upon reasonable written request by the Fund, the Custodian shall
furnish the Fund with a detailed statement of the Securities and monies
held for the Fund under this Agreement.
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(d) Registration of Securities and Physical Separation. All Securities
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held for the Fund which are issued or issuable only in bearer form, except
such Securities as are held in the Book-Entry System, shall be held by the
Custodian in that form; all other Securities held for the Fund may be
registered in the name of the Fund, in the name of the Custodian, in the
name of any duly appointed registered nominee of the Custodian as the
Custodian may from time to time determine, or in the name of the Book-Entry
System or the Depository or their successor or successors, or their nominee
or nominees. The Custodian shall use such method of registration and
safekeeping of the Securities as it is instructed by the Fund. The Fund
agrees to furnish to the Custodian appropriate instruments to enable the
Custodian to hold or deliver in proper form for transfer, or to register in
the name of its registered nominee or in the name of the Book-Entry System
or the Depository, any Securities which it may hold for the account of the
Fund and which may from time to time be registered in the name of the Fund.
The Custodian shall hold all such Securities specifically held for the Fund
which are not held in the Book-Entry System or the Depository in a separate
account for the Fund in the name of the Fund physically segregated at all
times from those of any other person or persons.
(e) Segregated Accounts. Upon receipt of a Written Instruction the
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Custodian will establish segregated accounts on behalf of the Fund to hold
liquid or other assets as it shall be directed by a Written Instruction and
shall increase or decrease the assets in such segregated accounts only as
it shall be directed by subsequent Written Instruction.
(f) Collection of Income and Other Matters Affecting Securities. Unless
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otherwise instructed to the contrary by a Written Instruction, the
Custodian by itself, or through the use of the Book-Entry System or the
Depository with respect to Securities therein deposited, shall with respect
to all Securities held for the Fund in accordance with this Agreement:
1. Collect all income due or payable;
2. Present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed, retired or
otherwise become payable. Notwithstanding the foregoing, the
Custodian shall have no responsibility to the Fund for monitoring or
ascertaining any call, redemption or retirement dates with respect to
put bonds which are owned by the Fund and held by the Custodian or
its nominees. Nor shall the Custodian have any responsibility or
liability to the Fund for any loss by the Fund for any missed
payments or other defaults resulting therefrom, unless the Custodian
received timely notification from the Fund specifying the time, place
and manner for the presentment of any such put bond owned by the Fund
and held by the Custodian or its nominee. The Custodian shall not be
responsible and assumes no liability to the Fund for the accuracy or
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completeness of any notification the Custodian may furnish to the
Fund with respect to put bonds;
3. Surrender Securities in temporary form for definitive
Securities;
4. Execute any necessary declarations or certificates of ownership
under the Federal income tax laws or the laws or regulations of any
other taxing authority now or hereafter in effect; and
5. Hold directly, or through the Book-Entry System or the
Depository with respect to Securities therein deposited, for the
account of the Fund all rights and similar Securities issued with
respect to any Securities held by the Custodian hereunder for the
Fund.
6. Promptly transmit to the Fund to the attention of _____________
at the address listed in Xxxxxxx 00, Xxxxxxxxx (x) hereof, any
communication relating to a security held by the Custodian for the
Fund. The Fund shall notify the Custodian in writing of any change of
the person at the Fund to whom any communications relating to a
security should be directed.
7. The Custodian shall promptly notify the Fund in writing, by
facsimile transmission or in such other manner as such Fund and
Custodian may agree in writing if any amount payable with respect to
Securities or other assets of such Fund is not received by the
Custodian when due.
(g) Delivery of Securities and Evidence of Authority. Upon receipt of a
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Written Instruction and not otherwise, except for subparagraphs 5, 6, 7,
and 8 of this Section 4(g) which may be effected by Oral or Written
Instructions, the Custodian, directly or through the use of the Book-Entry
System or the Depository, shall:
1. Execute and deliver or cause to be executed and delivered to
such persons as may be designated in such Written Instructions,
proxies, consents, authorizations, and any other instruments whereby
the authority of the Fund as owner of any Securities may be
exercised;
2. Deliver or cause to be delivered any Securities held for the
Fund in exchange for other Securities or cash issued or paid in
connection with the liquidation, reorganization, refinancing, merger,
consolidation or recapitalization of any corporation, or the exercise
of any conversion privilege;
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3. Deliver or cause to be delivered any Securities held for the
Fund to any protective committee, reorganization committee or other
person in connection with the reorganization, refinancing, merger,
consolidation or recapitalization or sale of assets of any
corporation, and receive and hold under the terms of this Agreement
in the separate account for the Fund such certificates of deposit,
interim receipts or other instruments or documents as may be issued
to it to evidence such delivery;
4. Make or cause to be made such transfers or exchanges of the
assets specifically allocated to the separate account of the Fund and
take such other steps as shall be stated in Written Instructions to
be for the purpose of effectuating any duly authorized plan of
liquidation, reorganization, merger, consolidation or
recapitalization of the Fund;
5. Deliver Securities upon sale of such Securities for the account
of the Fund pursuant to Section 5;
6. Deliver Securities upon the receipt of payment in connection
with any repurchase agreement related to such Securities entered into
by the Fund;
7. Deliver Securities owned by the Fund to the issuer thereof or
its agent when such Securities are called, redeemed, retired or
otherwise become payable; provided, however, that in any such case
the cash or other consideration is to be delivered to the Custodian.
Notwithstanding the foregoing, the Custodian shall have no
responsibility to the Fund for monitoring or ascertaining any call,
redemption or retirement dates with respect to the put bonds which
are owned by the Fund and held by the Custodian or its nominee. Nor
shall the Custodian have any responsibility or liability to the Fund
for any loss by the Fund for any missed payment or other default
resulting therefrom unless the Custodian received timely notification
from the Fund specifying the time, place and manner for the
presentment of any such put bond owned by the Fund and held by the
Custodian or its nominee. The Custodian shall not be responsible and
assumes no liability to the Fund for the accuracy or completeness of
any notification the Custodian may furnish to the Fund with respect
to put bonds;
8. Deliver Securities for delivery in connection with any loans of
Securities made by the Fund but only against receipt of adequate
collateral as agreed upon from time to time by the Custodian and the
Fund which may be in the form of cash or U.S. government securities
or a letter of credit;
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9. Deliver Securities for delivery as security in connection with
any borrowings by the Fund requiring a pledge of Fund assets, but
only against receipt of amounts borrowed;
10. Deliver Securities upon receipt of Written Instructions from the
Fund for delivery to the Transfer Agent or to the holders of Shares
in connection with distributions in kind, as may be described from
time to time in the Fund's Prospectus, in satisfaction of requests by
holders of Shares for repurchase or redemption;
11. Deliver Securities as collateral in connection with short sales
by the Fund of common stock for which the Fund owns the stock or owns
preferred stocks or debt securities convertible or exchangeable,
without payment or further consideration, into shares of the common
stock sold short;
12. Deliver Securities for any purpose expressly permitted by and in
accordance with procedures described in the Fund's Prospectus; and
13. Deliver Securities for any other proper business purpose, but
only upon receipt of, in addition to Written Instructions, a
certified copy of a resolution of the Board of Trustees signed by an
Authorized Person and certified by the Secretary of the Trust,
specifying the Securities to be delivered, setting forth the purpose
for which such delivery is to be made, declaring such purpose to be a
proper business purpose, and naming the person or persons to whom
delivery of such Securities shall be made.
(h) Endorsement and Collection of Checks, Etc. The Custodian is hereby
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authorized to endorse and collect all checks, drafts or other orders for
the payment of money received by the Custodian for the account of the Fund.
5. Purchase and Sale of Investments of the Fund.
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(a) Promptly after each purchase of Securities for the Fund, the Fund
shall deliver to the Custodian (i) with respect to each purchase of
Securities which are not Money Market Securities, a Written Instruction,
and (ii) with respect to each purchase of Money Market Securities, either a
Written Instruction or Oral Instruction, in either case specifying with
respect to each purchase: (1) the name of the issuer and the title of the
Securities; (2) the number of shares or the principal amount purchased and
accrued interest, if any; (3) the date of purchase and settlement; (4) the
purchase price per unit; (5) the total amount payable upon such purchase;
(6) the name of the person from whom or the broker through whom
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the purchase was made, if any; (7) whether or not such purchase is to be
settled through the Book-Entry System or the Depository; and (8) whether
the Securities purchased are to be deposited in the Book-Entry System or
the Depository. The Custodian shall receive the Securities purchased by or
for the Fund and upon receipt of Securities shall pay out of the monies
held for the account of the Fund the total amount payable upon such
purchase, provided that the same conforms to the total amount payable as
set forth in such Written or Oral Instruction.
(b) Promptly after each sale of Securities of the Fund, the Fund shall
deliver to the Custodian (i) with respect to each sale of Securities which
are not Money Market Securities, a Written Instruction, and (ii) with
respect to each sale of Money Market Securities, either Written Instruction
or Oral Instructions, in either case specifying with respect to such sale:
(1) the name of the issuer and the title of the Securities; (2) the number
of shares or principal amount sold, and accrued interest, if any; (3) the
date of sale; (4) the sale price per unit; (5) the total amount payable to
the Fund upon such sale; (6) the name of the broker through whom or the
person to whom the sale was made; and (7) whether or not such sale is to be
settled through the Book-Entry System or the Depository. The Custodian
shall deliver or cause to be delivered the Securities to the broker or
other person designated by the Fund upon receipt of the total amount
payable to the Fund upon such sale, provided that the same conforms to the
total amount payable to the Fund as set forth in such Written or Oral
Instruction. Subject to the foregoing, the Custodian may accept payment in
such form as shall be satisfactory to it, and may deliver Securities and
arrange for payment in accordance with the customs prevailing among dealers
in Securities.
6. Lending of Securities.
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If the Fund is permitted by the terms of the Master Trust Agreement
and as disclosed in its Prospectus to lend securities, within 24 hours
before each loan of Securities, the Fund shall deliver to the Custodian a
Written Instruction specifying with respect to each such loan: (a) the name
of the issuer and the title of the Securities; (b) the number of shares or
the principal amount loaned; (c) the date of loan and delivery; (d) the
total amount to be delivered to the Custodian, and specifically allocated
against the loan of the Securities, including the amount of cash collateral
and the premium, if any, separately identified; (e) the name of the broker,
dealer or financial institution to which the loan was made; and (f) whether
the Securities loaned are to be delivered through the Book-Entry System or
the Depository.
Promptly after each termination of a loan of Securities, the Fund
shall deliver to the Custodian a Written Instruction specifying with
respect to each such loan termination and return of Securities: (a) the
name of the issuer and the title of the Securities to be returned;
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(b) the number of shares or the principal amount to be returned; (c) the
date of termination; (d) the total amount to be delivered by the Custodian
(including the cash collateral for such Securities minus any offsetting
credits as described in said Written Instruction); (e) the name of the
broker, dealer or financial institution from which the Securities will be
returned; and (f) whether such return is to be effected through the Book-
Entry System or the Depository. The Custodian shall receive all Securities
returned from the broker, dealer or financial institution to which such
Securities were loaned and upon receipt thereof shall pay the total amount
payable upon such return of Securities as set forth in the Written
Instruction. Securities returned to the Custodian shall be held as they
were prior to such loan.
7. Payment of Dividends or Distributions.
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(a) The Fund shall furnish to the Custodian the vote of the Board of
Trustees of the Trust certified by the Secretary (i) authorizing the
declaration of distributions on a specified periodic basis and authorizing
the Custodian to rely on Oral or Written Instructions specifying the date
of the declaration of such distribution, the date of payment thereof, the
record date as of which shareholders entitled to payment shall be
determined, the amount payable per share to the shareholders of record as
of the record date and the total amount payable to the Transfer Agent on
the payment date, or (ii) setting forth the date of declaration of any
distribution by the Fund, the date of payment thereof, the record date as
of which shareholders entitled to payment shall be determined, the amount
payable per share to the shareholders of record as of the record date and
the total amount payable to the Transfer Agent on the payment date.
(b) Upon the payment date specified in such vote, Oral Instructions or
Written Instructions, as the case may be, the Custodian shall pay out the
total amount payable to the Transfer Agent of the Fund.
8. Sale and Redemption of Shares of the Fund.
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(a) Whenever the Fund shall sell any Shares, the Fund shall deliver or
cause to be delivered to the Custodian a Written Instruction duly
specifying:
1. The number of Shares sold, trade date, and price; and
2. The amount of money to be received by the Custodian for the sale
of such Shares.
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The Custodian understands and agrees that Written Instructions may be
furnished subsequent to the purchase of Shares and that the information
contained therein will be derived from the sales of Shares as reported to
the Fund by the Transfer Agent.
(b) Upon receipt of money from the Transfer Agent, the Custodian shall
credit such money to the separate account of the Fund.
(c) Upon issuance of any Shares in accordance with the foregoing
provisions of this Section 8, the Custodian shall pay all original issue or
other taxes required to be paid in connection with such issuance upon the
receipt of a Written Instruction specifying the amount to be paid.
(d) Except as provided hereafter, whenever any Shares are redeemed, the
Fund shall cause the Transfer Agent to promptly furnish to the Custodian
Written Instructions, specifying:
1. The number of Shares redeemed; and
2. The amount to be paid for the Shares redeemed.
The Custodian further understands that the information contained in
such Written Instructions will be derived from the redemption of Shares as
reported to the Fund by the Transfer Agent.
(e) Upon receipt from the Transfer Agent of advice setting forth the
number of Shares received by the Transfer Agent for redemption and that
such Shares are valid and in good form for redemption, the Custodian shall
make payment to the Transfer Agent of the total amount specified in a
Written Instruction issued pursuant to paragraph (d) of this Section 8.
(f) Notwithstanding the above provisions regarding the redemption of
Shares, whenever such Shares are redeemed pursuant to any check redemption
privilege which may from time to time be offered by the Fund, the
Custodian, unless otherwise instructed by a Written Instruction shall, upon
receipt of advice from the Fund or its agent stating that the redemption is
in good form for redemption in accordance with the check redemption
procedure, honor the check presented as part of such check redemption
privilege out of the monies specifically allocated to the Fund in such
advice for such purpose.
9. Indebtedness.
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(a) The Fund will cause to be delivered to the Custodian by any bank
(excluding the Custodian) from which the Fund borrows money for temporary
administrative or emergency purposes using Securities as collateral for
such borrowings, a notice or undertaking in the form currently employed by
any such bank setting forth the amount which such bank will loan to the
Fund against delivery of a stated amount of collateral. The Fund shall
promptly deliver to the Custodian Written Instructions stating with respect
to each such borrowing: (1) the name of the bank; (2) the amount and terms
of the borrowing, which may be set forth by incorporating by reference an
attached promissory note, duly endorsed by the Fund, or other loan
agreement; (3) the time and date, if known, on which the loan is to be
entered into (the "borrowing date"); (4) the date on which the loan becomes
due and payable; (5) the total amount payable to the Fund on the borrowing
date; (6) the market value of Securities to be delivered as collateral for
such loan, including the name of the issuer, the title and the number of
shares or the principal amount of any particular Securities; (7) whether
the Custodian is to deliver such collateral through the Book-Entry System
or the Depository; and (8) a statement that such loan is in conformance
with the 1940 Act and the Fund's Prospectus.
(b) Upon receipt of the Written Instruction referred to in subparagraph
(a) above, the Custodian shall deliver on the borrowing date the specified
collateral and the executed promissory note, if any, against delivery by
the lending bank of the total amount of the loan payable, provided that the
same conforms to the total amount payable as set forth in the Written
Instruction. The Custodian may, at the option of the lending bank, keep
such collateral in its possession, but such collateral shall be subject to
all rights therein given the lending bank by virtue of any promissory note
or loan agreement. The Custodian shall deliver as additional collateral in
the manner directed by the Fund from time to time such Securities as may be
specified in Written Instruction to collateralize further any transaction
described in this Section 9. The Fund shall cause all Securities released
from collateral status to be returned directly to the Custodian, and the
Custodian shall receive from time to time such return of collateral as may
be tendered to it. In the event that the Fund fails to specify in Written
Instruction all of the information required by this Section 9, the
Custodian shall not be under any obligation to deliver any Securities.
Collateral returned to the Custodian shall be held hereunder as it was
prior to being used as collateral.
10. Persons Having Access to Assets of the Fund.
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(a) No trustee or agent of the Fund, and no officer, director, employee
or agent of the Fund's investment adviser, of any sub-investment adviser of
the Fund, or of the Fund's administrator, shall have physical access to the
assets of the Fund held by the Custodian or be authorized or permitted to
withdraw any investments of the Fund, nor shall the Custodian deliver any
assets of the Fund to any such person. No officer, director, employee or
agent
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of the Custodian who holds any similar position with the Fund's investment
adviser, with any sub-investment adviser of the Fund or with the Fund's
administrator shall have access to the assets of the Fund.
(b) Nothing in this Section 10 shall prohibit any duly authorized
officer, employee or agent of the Trust, or any duly authorized officer,
director, employee or agent of the investment adviser, of any sub-
investment adviser of the Fund or of the Fund's administrator, from giving
Oral Instructions or Written Instructions to the Custodian or executing a
Certificate so long as it does not result in delivery of or access to
assets of the Fund prohibited by paragraph (a) of this Section 10.
11. Concerning the Custodian.
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(a) Standard of Conduct. Notwithstanding any other provision of this
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Agreement, neither the Custodian nor its nominee shall be liable for any
loss or damage, including counsel fees, resulting from its action or
omission to act or otherwise, except for any such loss or damage arising
out of the negligence or willful misconduct of the Custodian or any of its
employees, sub-custodians or agents. The Custodian may, with respect to
questions of law, apply for and obtain the advice and opinion of counsel to
the Fund at the expense of the Fund or its own counsel at its own expense,
and shall be fully protected with respect to anything done or omitted by it
in good faith in conformity with such advice or opinion. The Custodian
shall not be liable to the Fund for any loss or damage resulting from the
use of the Book-Entry System or the Depository.
(b) Limit of Duties. Without limiting the generality of the foregoing,
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the Custodian shall be under no duty or obligation to inquire into, and
shall not be liable for:
1. The validity of the issue of any Securities purchased by the
Fund, the legality of the purchase thereof, or the propriety of the
amount paid therefor;
2. The legality of the sale of any Securities by the Fund or the
propriety of the amount for which the same are sold;
3. The legality of the issue or sale of any Shares, or the
sufficiency of the amount to be received therefor;
4. The legality of the redemption of any Shares, or the propriety of
the amount to be paid therefor;
5. The legality of the declaration or payment of any distribution of
the Fund;
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6. The legality of any borrowing for temporary administrative or
emergency purposes.
(c) No Liability Until Receipt. The Custodian shall not be liable for, or
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considered to be the Custodian of, any money, whether or not represented by
any check, draft, or other instrument for the payment of money, received by
it on behalf of the Fund until the Custodian actually receives and collects
such money directly or by the final crediting of the account representing
the Fund's interest in the Book-Entry System or the Depository.
(d) Amounts Due from Transfer Agent. The Custodian shall not be under any
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duty or obligation to take action to effect collection of any amount due to
the Fund from the Transfer Agent nor to take any action to effect payment or
distribution by the Transfer Agent of any amount paid by the Custodian to
the Transfer Agent in accordance with this Agreement.
(e) Collection Where Payment Refused. The Custodian shall not be under any
--------------------------------
duty or obligation to take action to effect collection of any amount, if the
Securities upon which such amount is payable are in default, or if payment
is refused after due demand or presentation, unless and until (i) it shall
be directed to take such action by a Certificate and (ii) it shall be
assured to its satisfaction of reimbursement of its costs and expenses in
connection with any such action.
(f) Appointment of Agents and Sub-Custodians. Subject to the approval of
----------------------------------------
the Board of Trustees of the Trust, the Custodian may appoint one or more
banking institutions, including but not limited to banking institutions
located in foreign countries, to act as Depository or Depositories or as
sub-custodian or as sub-custodians of Securities and monies at any time
owned by the Fund. The Custodian shall use reasonable care in selecting a
sub-custodian located in a country other than the United States ("Foreign
Sub-Custodian"), and shall oversee the maintenance of any Securities or
monies of the Fund by any Foreign Sub-Custodian. In addition, the Custodian
shall hold the Fund harmless from, and indemnify the Fund against, any loss
that occurs as a result of the failure of any Foreign Sub-Custodian to
exercise reasonable care with respect to the safekeeping of Securities and
monies of the Fund. Notwithstanding the generality of the foregoing,
however, the Custodian shall not be liable for any losses resulting from or
caused by events or circumstances beyond its reasonable control, including,
but not limited to, losses resulting from nationalization, expropriation,
devaluation, revaluation, confiscation, seizure, cancellation, destruction
or similar action by any governmental authority, de facto or de jure; or
enactment, promulgation, imposition or enforcement by any such governmental
authority of currency restrictions, exchange controls, taxes, levies or
other charges affecting
14
the Fund's property; or acts of war, terrorism, insurrection or revolution;
or any other similar act or event beyond the Custodian's or its agent's
control. This Section shall survive the termination of this Agreement.
(g) No Duty to Ascertain Authority. The Custodian shall not be under any
------------------------------
duty or obligation to ascertain whether any Securities at any time delivered
to or held by it for the Fund are such as may properly be held by the Fund
under the provisions of the Master Trust Agreement and the Prospectus.
(h) Reliance on Certificates and Instructions. The Custodian shall be
-----------------------------------------
entitled to rely upon any Certificate, notice or other instrument in writing
received by the Custodian and reasonably believed by the Custodian in good
faith to be genuine and to be signed by an officer or Authorized Person of
the Fund. The Custodian shall be entitled to rely upon any Written
Instructions or Oral Instructions actually received by the Custodian
pursuant to the applicable Sections of this Agreement and reasonably
believed by the Custodian to be genuine and to be given by an Authorized
Person. The Fund agrees to forward to the Custodian Written Instructions
from an Authorized Person confirming such Oral Instructions in such manner
so that such Written Instructions are received by the Custodian, whether by
hand delivery, facsimile transmissions, telex or otherwise, by the close of
business on the same day that such Oral Instructions are given to the
Custodian. The Fund agrees that the fact that such confirming instructions
are not received by the Custodian shall in no way affect the validity of the
transactions or enforceability of the transactions hereby authorized by the
Fund. The Fund agrees that the Custodian shall incur no liability to the
Fund in acting upon Oral Instructions given to the Custodian hereunder
concerning such transactions provided such instructions reasonably believed
by the Custodian in good faith to have been received from a duly Authorized
Person.
(i) Overdraft Facility and Security for Payment. In the event that the
-------------------------------------------
Custodian is directed by Written Instruction (or Oral Instructions confirmed
in writing in accordance with Section 11(h) hereof) to make any payment or
transfer of monies on behalf of the Fund for which there would be, at the
close of business on the date of such payment or transfer, insufficient
monies held by the Custodian on behalf of the Fund, the Custodian may, in its
sole discretion, provide an overdraft (an "Overdraft") to the Fund in an
amount sufficient to allow the completion of such payment or transfer. Any
Overdraft provided hereunder: (a) shall be payable on the next Business Day,
unless otherwise agreed by the Fund and the Custodian; and (b) shall accrue
interest from the date of the Overdraft to the date of payment in full by the
Fund at a rate agreed upon in writing, from time to time, by the Custodian
and the Fund. The Custodian and the Fund acknowledge that the purpose of
such Overdraft is to temporarily finance the purchase of Securities for
prompt delivery in accordance with the terms hereof, to meet unanticipated or
unusual redemptions, to allow the settlement of
15
foreign exchange contracts or to meet other emergency expenses not reasonably
foreseeable by the Fund. The Custodian shall promptly notify the Fund in
writing (an "Overdraft Notice") of any Overdraft by facsimile transmission or
in such other manner as the Fund and the Custodian may agree in writing. To
secure payment of any Overdraft, the Fund hereby grants to the Custodian a
continuing security interest in and right of setoff against the Securities
and cash in the Fund's account from time to time in the full amount of such
Overdraft. Should the Fund fail to pay promptly any amounts owed hereunder,
the Custodian shall be entitled to use available cash in the Fund's account
and to liquidate Securities in the account as is necessary to meet the Fund's
obligations under the Overdraft. In any such case, and without limiting the
foregoing, the Custodian shall be entitled to take such other actions(s) or
exercise such other options, powers and rights as the Custodian now or
hereafter has as a secured creditor under the Massachusetts Uniform
Commercial Code or any other applicable law.
(j) Inspection of Books and Records. The books and records of the Custodian
-------------------------------
shall be open to inspection and audit at reasonable times by officers and
auditors employed by the Fund and by the appropriate employees of the
Securities and Exchange Commission.
The Custodian shall provide the Fund with any report obtained by the
Custodian on the system of internal accounting control of the Book-Entry
System or the Depository and with such reports on its own systems of
internal accounting control as the Fund may reasonably request from time to
time.
12. Term and Termination.
---------------------
(a) This Agreement shall become effective on the date first set forth above
(the "Effective Date") and shall continue in effect thereafter until such
time as this Agreement may be terminated in accordance with the provisions
hereof.
(b) Either of the parties hereto may terminate this Agreement by giving to
the other party a notice in writing specifying the date of such termination,
which shall be not less than 60 days after the date of receipt of such
notice. In the event such notice is given by the Fund, it shall be
accompanied by a certified vote of the Board of Trustees of the Trust,
electing to terminate this Agreement and designating a successor custodian
or custodians, which shall be a person qualified to so act under the 1940
Act.
In the event such notice is given by the Custodian, the Fund shall, on
or before the termination date, deliver to the Custodian a certified vote of
the Board of Trustees of the Trust, designating a successor custodian or
custodians. In the absence of such designation by the Fund, the Custodian
may designate a successor custodian, which shall be a person
16
qualified to so act under the 0000 Xxx. If the Fund fails to designate a
successor custodian, the Fund shall upon the date specified in the notice of
termination of this Agreement and upon the delivery by the Custodian of all
Securities (other than Securities held in the Book-Entry System which cannot
be delivered to the Fund) and monies then owned by the Fund, be deemed to be
its own custodian and the Custodian shall thereby be relieved of all duties
and responsibilities pursuant to this Agreement, other than the duty with
respect to Securities held in the Book-Entry System which cannot be
delivered to the Fund.
(c) Upon the date set forth in such notice under paragraph (b) of this
Section 12, this Agreement shall terminate to the extent specified in such
notice, and the Custodian shall upon receipt of a notice of acceptance by
the successor custodian on that date deliver directly to the successor
custodian all Securities and monies then held by the Custodian on behalf of
the Fund, after deducting all fees, expenses and other amounts for which it
shall then be entitled to payment or reimbursement by the Fund.
13. Limitation of Liability.
------------------------
The Fund and the Custodian agree that the obligations of the Fund under
this Agreement shall not be binding upon any of the Trustees, shareholders,
nominees, officers, employees or agents, whether past, present or future, of
the Trust, individually, but are binding only upon the assets and property
of the Fund, as provided in the Master Trust Agreement. The execution and
delivery of this Agreement have been authorized by the Trustees of the
Trust, and signed by an authorized officer of the Trust, acting as such.
Neither such authorization by such Trustees nor such execution and delivery
by such officer shall be deemed to have been made by any of them or any
shareholder of the Fund individually or to impose any liability on any of
them or any shareholder of the Fund personally, but shall bind only the
assets and property of the Fund as provided in the Master Trust Agreement.
The Master Trust Agreement is on file with the Secretary of the Commonwealth
of Massachusetts.
14. Miscellaneous.
--------------
(a) Annexed hereto as Appendix A is a certification signed by the Secretary
----------
of the Trust setting forth the names and the signatures of the present
Authorized Persons. The Fund agrees to furnish to the Custodian a new
certification in similar form in the event that any such present Authorized
Person ceases to be such an Authorized Person or in the event that other or
additional Authorized Persons are elected or appointed. Until such new
certification shall be received, the Custodian shall be fully protected in
acting under the provisions of this Agreement upon Oral Instructions or
signatures of the present Authorized Persons as set forth in the last
delivered certification.
17
(b) Annexed hereto as Appendix B is a certification signed by the Secretary
----------
of the Trust setting forth the names and the signatures of the present
officers of the Trust. The Fund agrees to furnish to the Custodian a new
certification in similar form in the event any such present officer ceases
to be an officer of the Trust or in the event that other or additional
officers are elected or appointed. Until such new certification shall be
received, the Custodian shall be fully protected in acting under the
provisions of this Agreement upon the signature of an officer as set forth
in the last delivered certification.
(c) Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Custodian, shall be sufficiently given if
addressed to the Custodian and mailed, delivered, or transmitted by
facsimile with hard copy confirmation to follow, at its offices at Xxx
Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (fax number: (000) 000-0000) or
at such other place as the Custodian may from time to time designate in
writing.
(d) Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Fund, shall be sufficiently given if
addressed to the Fund and mailed or delivered to it at its offices at 0000
Xxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000 or at such other place as the Fund may
from time to time designate in writing.
(e) This Agreement may not be amended or modified in any manner except by a
written agreement executed by both parties with the same formality as this
Agreement (i) authorized, or ratified and approved by a vote of the Board of
Trustees of the Trust or (ii) authorized, or ratified and approved by such
other procedures as may be permitted or required by the 1940 Act.
(f) This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by the Fund without the written
consent of the Custodian, or by the Custodian without the written consent of
the Fund authorized or approved by a vote of the Board of Trustees of the
Trust and any attempted assignment without such written consent shall be
null and void. Nothing in this Agreement shall give or be construed to give
or confer upon any third party any rights hereunder.
(g) The Fund represents that a copy of the Master Trust Agreement is on
file with the Secretary of the Commonwealth of Massachusetts and with the
Springfield City Clerk.
(h) This Agreement shall be construed in accordance with the laws of The
Commonwealth of Massachusetts.
18
(i) The captions of the Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
(j) 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.
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective representatives duly authorized as of the day and
year first above written.
MML SERIES INVESTMENT FUND
on behalf of Equity Index Fund
By:
Name:
Title:
BOSTON SAFE DEPOSIT AND TRUST COMPANY
By:
Name:
Title:
20
APPENDIX A
----------
I, _____________________________________, the Secretary of MML SERIES
INVESTMENT FUND, a business trust organized under the laws of the Commonwealth
of Massachusetts, do hereby certify that:
The following individuals have been duly authorized as Authorized Persons
give Oral Instructions and Written Instructions on behalf of the MML Equity
Index Fund and the specimen signatures set forth opposite their respective names
are their true and correct signatures:
Name Signature
---- ---------
MML SERIES INVESTMENT FUND
By:
Secretary
Dated:
00
XXXXXXXX X
----------
I, ______________________________, the Secretary of MML SERIES
INVESTMENT FUND (the "Trust"), a business trust organized under the laws of the
Commonwealth of Massachusetts, do hereby certify that:
The following individuals serve in the following positions with the
Trust and each individual has been duly elected or appointed to each such
position and qualified therefor in conformity with the Trust's Master Trust
Agreement and the specimen signatures set forth opposite their respective names
are their true and correct signatures:
Name Position Signature
---- -------- ---------
Chairman of the Board
President
Treasurer
Secretary
Vice President and
Investment Officer
Vice President and
Investment Officer
MML SERIES INVESTMENT FUND
By:
Secretary
Dated:
22
