EXHIBIT 99.(h)(7)
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SUB-ADMINISTRATION AGREEMENT
AGREEMENT made as of October 11, 2004 by and between Massachusetts
Mutual Life Insurance Company, a corporation organized under the laws of
Massachusetts ("MassMutual"), and INVESTORS BANK & TRUST COMPANY, a
Massachusetts trust company (the "Bank").
WHEREAS, The DLB Fund Group (the "Trust"), a Massachusetts business
trust, was organized as a registered investment company under the Investment
Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Trust is authorized to issue shares in a separate series,
with each such series representing interests in a separate portfolio of
securities and other assets (the "Portfolio(s)");
WHEREAS, MassMutual has entered into separate administrative agreements
with the portfolios listed on Appendix A, which agreements grant MassMutual the
right to sub-contract its administrative duties and responsibilities under that
agreement;
WHEREAS, MassMutual desires to retain the Bank to render certain
administrative services to the Trust and the Bank is willing to render such
services; and
WHEREAS, the Trust's Board of Trustees has approved this delegation of
duties and responsibilities to the Bank.
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, it is agreed between the parties hereto as follows:
1. Appointment. MassMutual hereby appoints the Bank to act as
Sub-Administrator of the Trust on behalf of the Portfolios listed on Appendix A
hereto [(as such Appendix A may be amended from time to time) (each a
"Portfolio" and collectively, the "Portfolios")] on the terms set forth in this
Agreement. The Bank accepts such appointment and agrees to render the services
herein set forth for the compensation herein provided.
2. Delivery of Documents. MassMutual has furnished the Bank with copies
properly certified or authenticated of each of the following:
(a) Resolutions of the Trust's Board of Directors authorizing
the appointment of the Bank to provide certain administrative services to the
Trust and approving this Agreement;
(b) The Trust's incorporating documents filed with the state
of Massachusetts and all amendments thereto (the "Articles");
(c) The Trust's by-laws and all amendments thereto (the
"By-Laws");
(d) MassMutual's and the Trust's agreements with all service
providers which include any investment advisory agreements, sub-investment
advisory agreements, custody agreements, distribution agreements and transfer
agency agreements (collectively, the "Agreements");
(e) The Trust's most recent Registration Statement on Form
N-1A (the "Registration Statement") under the Securities Act of 1933 and under
the 1940 Act and all amendments thereto; and
(f) The Trust's most recent prospectus and statement of
additional information (the "Prospectus"); and
(g) Such other certificates, documents or opinions as may
mutually be deemed necessary or appropriate for the Bank in the proper
performance of its duties hereunder.
MassMutual will promptly furnish the Bank with copies of all
amendments of or supplements to the foregoing. Furthermore, MassMutual will
notify the Bank as soon as possible of any matter which may materially affect
the performance by the Bank of its services under this Agreement.
3. Duties of Sub-Administrator. Subject to the supervision and
direction of MassMutual and the Board of Trustees of the Trust, the Bank, as
Sub-Administrator, will assist in conducting various aspects of the Trust's
administrative operations and undertakes to perform the services described in
Appendix C hereto. The Bank may, from time to time, perform additional duties
and functions which shall be set forth in an amendment to such Appendix C
executed by both parties. At such time, the fee schedule included in Appendix B
hereto shall be appropriately amended.
In performing all services under this Agreement, the Bank shall act in
conformity with the Trust's Articles and By-Laws and the 1940 Act, as the same
may be amended from time to time, and the investment objectives, investment
policies and other practices and policies set forth in the Trust's Registration
Statement, as the same may be amended from time to time. Notwithstanding any
item discussed herein, the Bank has no discretion over the Trust's assets or
choice of investments and cannot be held liable for any problem relating to such
investments.
4. Duties of MassMutual.
(a) MassMutual is solely responsible (through its transfer
agent or otherwise) for (i) providing timely and accurate reports ("Daily Sales
Reports") which will enable the Bank as Sub-Administrator to monitor the total
number of shares sold in each state on a daily basis and (ii) identifying any
exempt transactions ("Exempt Transactions") which are to be excluded from the
Daily Sales Reports.
(b) MassMutual agrees to make its legal counsel available to
the Bank for instruction with respect to any matter of law arising in connection
with the Bank's duties hereunder, and MassMutual further agrees that the Bank
shall be entitled to rely on such instruction without further investigation on
the part of the Bank.
5. Fees and Expenses.
(a) For the services to be rendered and the facilities to be
furnished by the Bank, as provided for in this Agreement, MassMutual will
compensate the Bank in accordance with the fee schedule attached as Appendix B
hereto. Such fees do not include out-of-pocket disbursements (as delineated on
the fee schedule or other expenses with the prior approval of MassMutual's
management) of the Bank for which the Bank shall be entitled to xxxx MassMutual
separately and for which MassMutual shall reimburse the Bank.
(b) The Bank shall not be required to pay any expenses
incurred by MassMutual or the Trust.
6. Limitation of Liability.
(a) The Bank, its directors, officers, employees and agents
shall not be liable for any error of judgment or mistake of law or for any loss
suffered by MassMutual or the Trust in connection with the performance of its
obligations and duties under this Agreement, except a loss resulting from
willful misfeasance, bad faith or negligence in the performance of such
obligations and duties, or by reason of its reckless disregard thereof.
MassMutual and the Trust will indemnify the Bank, its directors, officers,
employees and agents against and hold it and them harmless from any and all
losses, claims, damages, liabilities or expenses (including legal fees and
expenses) resulting from any claim, demand,
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action or suit (i) arising out of the actions or omissions of MassMutual,
including, but not limited to, inaccurate Daily Sales Reports and
misidentification of Exempt Transactions; (ii) arising out of the offer or sale
of any securities of the Trust in violation of (x) any requirement under the
federal securities laws or regulations, (y) any requirement under the securities
laws or regulations of any state, or (z) any stop order or other determination
or ruling by any federal or state agency with respect to the offer or sale of
such securities; or (iii) not resulting from the willful misfeasance, bad faith
or negligence of the Bank in the performance of such obligations and duties or
by reason of its reckless disregard thereof.
(b) The Bank may apply to MassMutual at any time for
instructions and may, with prior MassMutual approval, consult counsel for
MassMutual, or its own counsel, and with accountants and other experts with
respect to any matter arising in connection with its duties hereunder, and the
Bank shall not be liable or accountable for any action taken or omitted by it in
good faith in accordance with such instruction, or with the opinion of such
counsel, accountants, or other experts. The Bank shall not be liable for any act
or omission taken or not taken in reliance upon any document, certificate or
instrument which it reasonably believes to be genuine and to be signed or
presented by the proper person or persons. The Bank shall not be held to have
notice of any change of authority of any officers, employees, or agents of
MassMutual or the Trust until receipt of written notice thereof has been
received by the Bank from MassMutual.
(c) In the event the Bank is unable to perform, or is delayed
in performing, its obligations under the terms of this Agreement because of acts
of God, strikes, legal constraint, government actions, war, emergency
conditions, interruption of electrical power or other utilities, equipment or
transmission failure or damage reasonably beyond its control or other causes
reasonably beyond its control, the Bank shall not be liable to MassMutual or the
Trust for any damages resulting from such failure to perform, delay in
performance, or otherwise from such causes.
(d) Notwithstanding anything to the contrary in this
Agreement, in no event shall the Bank be liable for special, incidental or
consequential damages, even if advised of the possibility of such damages.
7. Termination of Agreement
(a) The term of this Agreement shall continue through January
1, 2007 (the "Initial Term"), unless earlier terminated as provided herein.
After the expiration of the Initial Term, the term of this Agreement shall
automatically renew for successive one year terms (each a "Renewal Term") unless
ninety (90) days written notice of non-renewal is delivered by the non-renewing
party to the other party via electronic mail or otherwise prior to the
expiration of the Initial Term or anytime thereafter, as the case may be.
(i) Either party hereto may terminate this Agreement
prior to the expiration of the Initial Term or any time thereafter in the event
the other party breaches any material provision of this Agreement, provided that
the non-violating party gives written notice of such violation to the violating
party and the violating party does not cure such violation within forty-five
(45) days of receipt of such notice.
(ii) If a majority of the Board of Trustees
reasonably determines that the performance of the Bank under this Agreement does
not meet industry standards, written notice (the "Notice") of such determination
setting forth the reasons for such determination shall be provided to the Bank.
In the event the Bank shall not, within forty-five (45) days thereafter, cure
identified deficiencies to the reasonable satisfaction of the Board of Trustees,
the Fund, with the authorization of the Board, may terminate this Agreement.
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(b) At any time after the termination of this Agreement,
MassMutual may, upon written request, have reasonable access to the records of
the Bank relating to its performance of its duties as Sub-Administrator."
8. Miscellaneous.
(a) Any notice or other instrument authorized or required by
this Agreement to be given in writing to MassMutual, the Trust or the Bank shall
be sufficiently given if addressed to that party and received by it at its
office set forth below or at such other place as it may from time to time
designate in writing.
To MassMutual:
Massachusetts Mutual Life Insurance Co.
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxx X Xxxxxxx
To the Trust:
The DLB Fund Group
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: President of the Trust
With a copy to: Secretary of the Trust
To the Bank:
Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Director, Client
Management
With a copy to: Xxxx X. Xxxxx, General Counsel
(b) 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 without the written consent
of the other party.
(c) This Agreement shall be construed in accordance with the
laws of the Commonwealth of Massachusetts, without regard to its conflict of
laws provisions.
(d) This Agreement may be executed in any number of
counterparts each of which shall be deemed to be an original and which
collectively shall be deemed to constitute only one instrument.
(e) The captions of this 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.
9. Confidentiality. All books, records, information and data pertaining
to the business of the other party which are exchanged or received pursuant to
the negotiation or the carrying out of this Agreement shall remain confidential,
and shall not be voluntarily disclosed to any other person, except as may be
required in the performance of duties hereunder or as otherwise required by law.
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10. Use of Name. MassMutual shall not use the name of the Bank or any
of its affiliates in any prospectus, sales literature or other material relating
to the Trust in a manner not approved by the Bank prior thereto in writing;
provided however, that the approval of the Bank shall not be required for any
use of its name which merely refers in accurate and factual terms to its
appointment hereunder or which is required by the Securities and Exchange
Commission or any state securities authority or any other appropriate
regulatory, governmental or judicial authority; provided further, that in no
event shall such approval be unreasonably withheld or delayed.
11. Insurance Coverage. The Bank shall use the same care with respect
to the safekeeping of Portfolio Securities and cash of the Fund held by it as it
uses in respect of its own similar property but it need not maintain any special
insurance for the benefit of the Fund. The Bank shall at all times maintain
insurance coverages adequate for the nature of its operations, including
directors and officers, errors and omissions, and fidelity bond insurance
coverages. The Bank shall provide Fund copies of its insurance policies, upon
request. The bank shall notify Fund if there are any material changes to its
insurance policies.
12. Business Continuity and Disaster Recovery Plans. Notwithstanding
anything in this Agreement to the contrary, the Bank shall have in place
comprehensive business continuity and disaster recovery procedures and systems.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed and delivered by their duly authorized officers as of the date
first written above.
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By:
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Name:
Title:
INVESTORS BANK & TRUST COMPANY
By:
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Name:
Title:
ACKNOWLEDGED AND ACCEPTED BY
The DLB Fund Group
By:
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Name:
Title:
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Appendices
Appendix A............................................ Portfolios
Appendix B............................................ Fee Schedule
Appendix C............................................ Services
Appendix A
Portfolios
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DLB Enhanced Index Value Fund II
