EXHIBIT 99.(d)(2)
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FORM OF
INVESTMENT SUB-ADVISORY AGREEMENT
for the DLB [ ] Fund
This Investment Sub-Advisory Agreement (this "Sub-Advisory Agreement"), is by
and between Babson Capital Management LLC (the "Sub-Adviser") and Massachusetts
Mutual Life Insurance Company, a mutual life insurance company organized under
the laws of the Commonwealth of Massachusetts ("MassMutual"), for the DLB
Enhanced Index Value Fund II (the "Fund"), a series of The DLB Fund Group (the
"Trust"), a Massachusetts business trust which is an open-end diversified
management investment company registered as such with the Securities and
Exchange Commission (the "Commission") pursuant to the Investment Company Act of
1940, as amended (the "Act"), effective as of the 13th day of October, 2004.
WHEREAS, the Trust has appointed MassMutual as the investment adviser for the
Fund pursuant to the terms of an Investment Advisory Agreement (the "Advisory
Agreement");
WHEREAS, the Advisory Agreement provides that MassMutual may, at its option,
subject to approval by the Trustees of the Trust and, to the extent necessary,
the shareholders of the Fund, appoint a sub-adviser to assume certain
responsibilities and obligations of MassMutual under the Advisory Agreement; and
WHEREAS, MassMutual and the Sub-Adviser are investment advisers registered with
the Commission as such under the Investment Advisers Act of 1940, as amended
(the "Advisers Act");
NOW THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, MassMutual, the Fund and the Sub-Adviser, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. General Provision.
(a) MassMutual hereby employs the Sub-Adviser and the Sub-Adviser
hereby undertakes to act as the investment sub-adviser of the Fund to provide
investment advice and to perform for the Fund such other duties and functions as
are hereinafter set forth. The Sub-Adviser shall, in all matters, give to the
Fund and the Trust's Board of Trustees, directly or through MassMutual, the
benefit of the Sub-Adviser's best judgment, effort, advice and recommendations
and shall, at all times conform to, and use its best efforts to ensure the Fund
conforms to:
(i) the provisions of the Act and any rules or regulations
thereunder;
(ii) any other applicable provisions of state or federal law
applicable to the operation of registered investment companies;
(iii) the provisions of the Agreement and Declaration of Trust
and Bylaws of the Trust, as amended from time to time and provided to
the Sub-Adviser by MassMutual (collectively referred to as the "Trust
Documents");
(iv) policies and determinations of the Board of Trustees of
the Trust and MassMutual, which have been delivered to the Sub-Adviser;
(v) the fundamental and non-fundamental policies and
investment restrictions of the Fund as reflected in the Trust's
registration statement under the Act or as such policies may, from time
to time, be amended by the Fund's Board of Trustees or shareholders;
and
(vi) the Prospectus and Statement of Additional Information of
the Fund in effect from time to time (collectively referred to as the
"Disclosure Documents").
(b) The appropriate officers and employees of the Sub-Adviser shall be
available upon reasonable notice for consultation with any of the Trustees and
officers of the Trust and MassMutual with respect to the services provided by
the Sub-Adviser hereunder. MassMutual acknowledges that the Sub-Adviser is not
the Fund's pricing agent. The Sub-Adviser will provide reasonable assistance to
the Fund's pricing agent in valuing securities held by the Fund for which market
quotations are not readily available (i.e., internally priced securities).
(c) MassMutual acknowledges that the Sub-Adviser is not the compliance
agent for the Fund or for MassMutual, and does not have access to all of the
Fund's books and records necessary to perform certain compliance testing. To the
extent that the Sub-Adviser has agreed to perform the services specified in this
Section and in Section 2 hereof in accordance with applicable law (including
sub-chapters M and L of the Internal Revenue Code of 1986, as amended (the
"Code"), the Act and the Advisers Act ("Applicable Law")) and in accordance with
the Trust Documents, policies and determinations of the Board of Trustees of the
Trust and MassMutual and the Fund's Disclosure Documents (collectively, the
"Charter Requirements"), the Sub-Adviser shall perform such services based upon
its books and records with respect to the Fund, which comprise a portion of the
Fund's books and records, and upon written instructions received from the Fund,
MassMutual or the Fund's administrator, and shall not be held responsible under
this Sub-Advisory Agreement so long as it performs such services in accordance
with this Sub-Advisory Agreement, the Charter Requirements and Applicable Law
based upon such books and records and such instructions provided by the Fund,
MassMutual or the Fund's administrator. The Sub-Adviser shall be afforded a
reasonable amount of time to implement any such instructions (for example, if
instructed not to trade on behalf of securities of certain specified MassMutual
or Fund affiliates, the Sub-Adviser shall be afforded five business days after
receipt of such instruction to implement this trading restriction).
2. Duties of the Sub-Adviser.
(a) The Sub-Adviser shall, subject to the direction and control by the
Trust's Board of Trustees or MassMutual, to the extent MassMutual's direction is
not inconsistent with the Disclosure Documents, (i) regularly provide investment
advice and recommendations to the Fund, directly or through MassMutual, with
respect to the Fund's investments, investment policies and the purchase, sale or
other disposition of securities and other investments; (ii) supervise and
monitor continuously the investment program of the Fund and the composition of
its portfolio and determine what securities or other investments shall be
purchased or sold by the Fund; (iii) arrange, subject to the provisions of
Section 7 hereof, for the purchase of securities and other investments for the
Fund and the sale of securities and other investments held in the portfolio of
the Fund; (iv) provide reports on the foregoing to the Board of Trustees at each
Board meeting; and (v) vote or exercise any consent rights with respect to such
securities or investments.
(b) The Sub-Adviser shall provide to MassMutual such reports for the
Fund, and in monthly, quarterly or annual time frames, as MassMutual shall
reasonably request or as required by applicable law or regulation, including,
but not limited to, those listed in Appendix A.
(c) Provided that none of MassMutual, the Fund or the Trust shall be
required to pay any compensation other than as provided by the terms of this
Sub-Advisory Agreement and subject to the provisions of Section 7 hereof, the
Sub-Adviser may obtain investment information, research or assistance from any
other person, firm or corporation to supplement, update or otherwise improve its
investment management services.
(d) Provided that nothing herein shall be deemed to protect the
Sub-Adviser from acts or omissions in breach of this Sub-Advisory Agreement or
from willful misfeasance, bad faith or gross negligence in the performance of
its duties, or reckless disregard to its obligations and duties under this
Sub-Advisory Agreement, the Sub-Adviser shall not be liable for any loss
sustained by reason of good faith errors or omissions in connection with any
matters to which this Sub-Advisory Agreement relates.
(e) The Sub-Adviser shall make all material disclosures to MassMutual
and the Fund regarding itself and its partners, officers, directors,
shareholders, employees, affiliates or any person who controls any of the
foregoing, including, but not limited to, information regarding any change in
control of the Sub-Adviser or any change in its key personnel that could
materially affect the services provided by the Sub-Adviser hereunder,
information regarding any material adverse change in the condition (financial or
otherwise) of the Sub-Adviser or any person who controls the Sub-Adviser,
information regarding the investment performance and general investment methods
of the Sub-Adviser, its principals and affiliates, information that MassMutual
reasonably deems material to the Fund or necessary to enable MassMutual to
monitor the performance of the Sub-Adviser and information that is required, in
the reasonable judgment of MassMutual, to be disclosed in any filings required
by any governmental agency or by any applicable law, regulation, rule or order.
(f) The Sub-Adviser shall provide MassMutual, upon reasonable prior
written request by MassMutual to the Sub-Adviser, with access to inspect at the
Sub-Adviser's office the books and records of the Sub-Adviser relating to the
Fund and the Sub-Adviser's performance hereunder and such other books and
records of the Sub-Adviser as are necessary to confirm that the Sub-Adviser has
complied with its obligations and duties under this Sub-Advisory Agreement. The
Sub-Adviser agrees that all records which it maintains for the Fund are property
of the Fund and the Sub-Adviser will promptly surrender to the Fund any of such
records or copies thereof upon the Fund's request.
(g) The Sub-Adviser makes no representations or warranty, express or
implied (except as subject to Section 3(b) herein), that any level of
performance or investment results will be achieved by the Fund or that the Fund
will perform comparably with any standard, including any other clients of the
Sub-Adviser or index.
(h) The Sub-Adviser agrees to reimburse MassMutual for any costs
associated with the production, printing and filing with the Commission (not
including mailing costs) of supplements to the Disclosure Documents due to
changes caused by the Sub-Adviser, except for any such costs which may properly
be charged to the Fund.
3. Other Activities.
(a) Nothing in this Sub-Advisory Agreement shall prevent MassMutual or
the Sub-Adviser or any officer thereof from acting as investment adviser or
sub-adviser for any other person, firm, corporation or other entity and shall
not in any way limit or restrict MassMutual or the Sub-Adviser or any of their
respective directors, officers, members, stockholders, partners or employees
from buying, selling, or trading any securities for its own account or for the
account of others for whom it or they may be acting, provided that such
activities are in compliance with U.S. federal and state securities laws,
regulations and rules and will not adversely affect or otherwise impair the
performance by any party of its duties and obligations under this Sub-Advisory
Agreement.
(b) The Sub-Adviser agrees that it will not knowingly or deliberately
favor any other account managed or controlled by it or any of its principals or
affiliates over the Fund. The Sub-Adviser, upon reasonable request and receipt
of adequate assurances of confidentiality, shall provide MassMutual with an
explanation of the differences, if any, in performance between the Fund and any
other account with investment objectives and policies similar to the Fund for
which the Sub-Adviser, or any one of its principals or affiliates, acts as
investment adviser. To the extent that a particular investment is suitable for
both the Fund and the Sub-Adviser's other clients, such investment will be
allocated among the Fund and such other clients in a manner that is fair and
equitable in the circumstances.
4. Obligations of MassMutual and the Fund.
(a) MassMutual will provide, or has provided, to the Sub-Adviser, such
information or documents as the Sub-Adviser shall reasonably request or as
required by applicable law or regulation. Throughout the term of this
Sub-Advisory Agreement, MassMutual shall continue to provide such information
and documents to the Sub-Adviser, including any amendments, updates or
supplements to such information or documents before or at the time the
amendments, updates or supplements become effective. MassMutual shall timely
furnish the Sub-Adviser with such additional information as may be reasonably
necessary for or requested by the Sub-Adviser to perform its responsibilities
pursuant to this Sub-Advisory Agreement.
(b) MassMutual shall provide such assistance to the Sub-Adviser in
setting up and maintaining brokerage accounts and other accounts as the
Sub-Adviser shall reasonably request to allow for the purchase or sale of
various forms of securities pursuant to this Sub-Advisory Agreement.
5. Custodian and Fund Accountant. The Fund assets shall be maintained in
the custody of Investors Bank & Trust Company, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other custodian identified to the Sub-Adviser. Any
assets added to the Fund shall be delivered directly to such custodian. The
Sub-Adviser shall have no liability for the acts or omissions of any custodian
of the Fund's assets. The Sub-Adviser shall have no responsibility for the
segregation requirement of the Act or other applicable law. In addition, at the
date of this Sub-Advisory Agreement, MassMutual has contracted with Investors
Bank & Trust Company to provide fund accounting services on behalf of the Fund.
The Sub-Adviser shall have no liability for the acts or omissions of Investors
Bank & Trust Company or such other fund accountant in connection with fund
accounting services provided on behalf of the Fund.
6. Compensation of the Sub-Adviser.
(a) MassMutual agrees to pay the Sub-Adviser and the Sub-Adviser agrees
to accept as full compensation for the performance of all functions and duties
on its part to be performed pursuant to the provisions hereof, a fee paid
quarterly, in arrears, at the annual rate of 0.25% on the average daily net
assets of the Fund under management by the Sub-Adviser determined at the close
of the New York Stock Exchange on each day that the Exchange is open for
trading. MassMutual shall pay the Sub-Advisor such fee not later than the tenth
(10th) business day immediately following the end of each calendar quarter.
Average daily net assets for which the Sub-Adviser provides investment advisory
services shall mean all assets except for cash or cash equivalents.
(b) Expenses. MassMutual, the Trust and the Fund shall assume and pay
their respective organizational, operational and business expenses not
specifically assumed or agreed to be paid by the Sub-Adviser pursuant to this
Sub-Advisory Agreement. The Sub-Adviser shall pay its own organizational,
operational and business expenses but shall not be obligated to pay any expenses
of MassMutual, the Trust or the Fund, including, without limitation: (a)
interest and taxes; (b) brokerage commissions and other costs in connection with
the purchase or sale of securities or other investment instruments of the Fund;
and (c) custodian fees and expenses. Any reimbursement of management or other
fees required by an expense limitation provision and any liability arising out
of a violation by MassMutual of Section 36(b) of the Act shall be the sole
responsibility of MassMutual, provided that nothing herein shall relieve
Sub-Adviser from its own liability under Section 36(b) of the Act with respect
to its duties under this Sub-Advisory Agreement.
7. Portfolio Transactions and Brokerage.
(a) The Sub-Adviser is authorized, in arranging the purchase and sale
of the Fund's publicly-traded portfolio securities, to employ or deal with such
members of securities exchanges, brokers or dealers (hereinafter
"broker-dealers"), as may, in its best judgment, implement the policy of the
Fund to obtain, at reasonable expense, the best execution (prompt and reliable
execution at the most favorable security price obtainable) of the Fund's
portfolio transactions.
(b) The Sub-Adviser may effect the purchase and sale of securities
(which are otherwise publicly traded) in private transactions on such terms and
conditions as are customary in such transactions, may use a broker to effect
such transactions, and may enter into a contract in which the broker acts either
as principal or as agent.
(c) The Sub-Adviser shall select broker-dealers to effect the Fund's
portfolio transactions on the basis of its estimate of their ability to obtain
best execution of particular and related portfolio transactions. The abilities
of a broker-dealer to obtain best execution of particular portfolio
transaction(s) will be judged by the Sub-Adviser on the basis of all relevant
factors and considerations including, insofar as feasible, the execution
capabilities required by the transaction or transactions; the ability and
willingness of the broker-dealer to facilitate the Fund's portfolio transactions
by participating therein for its own account; the importance to the Fund of
speed, efficiency or confidentiality; the broker-dealer's apparent familiarity
with sources from or to whom particular securities might be purchased or sold;
other matters involved in the receipt of brokerage and research services in
accordance with Section 28(e) of the Securities Exchange Act of 1934, as
amended; as well as any other matters relevant to the selection of a
broker-dealer for particular and related transactions of the Fund; and such
other considerations as the Board of Trustees of the Trust or MassMutual
determine and provide to the Sub-Adviser from time to time. Subject to these
requirements and the provisions of the Act, the Securities Exchange Act of 1934,
as amended, and other applicable provisions of law, the Sub-Adviser may select
brokers or dealers with which it or the Trust are affiliated.
8. Representations And Warranties of The Sub-Adviser.
The Sub-Adviser hereby represents and warrants to the Fund and MassMutual that:
(a) The Sub-Adviser has obtained all required governmental and
regulatory licenses, registrations and approvals required by law as may be
necessary to perform its obligations under this Sub-Advisory Agreement and to
act as contemplated by the Trust Documents and the Disclosure Documents,
including without limitation registration as an investment adviser under the
Advisers Act, and will maintain and renew any required licenses, registrations,
approvals and memberships during the term of this Sub-Advisory Agreement.
(b) There is no pending, or to the best of its knowledge, threatened or
contemplated action, suit or proceeding before or by any court, governmental,
administrative or self-regulatory body or arbitration panel to which the
Sub-Adviser or any of its principals or affiliates is a party, or to which any
of the assets of the Sub-Adviser is subject, which reasonably might be expected
to (i) result in any material adverse change in the Sub-Adviser's condition
(financial or otherwise), business or prospects, (ii) affect adversely in any
material respect any of the Sub-Adviser's assets, (iii) materially impair the
Sub-Adviser's ability to discharge its obligations under this Sub-Advisory
Agreement, or (iv) result in a matter which would require an amendment to the
Sub-Adviser's Form ADV, Part II; and the Sub-Adviser has not received any notice
of an investigation by the Commission or any state regarding U.S. federal or
state securities laws, regulations or rules.
(c) All references in the Disclosure Documents concerning the
Sub-Adviser and its affiliates and the controlling persons, affiliates,
stockholders, directors, officers and employees of any of the foregoing provided
to MassMutual by the Sub-Adviser or approved by the Sub-Adviser for use in the
Disclosure Documents, as well as all performance information provided to
MassMutual by the Sub-Adviser or approved by the Sub-Adviser for use by
MassMutual, are accurate in all material respects and do not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make such information not misleading.
(d) Subject to adequate assurances of confidentiality, the Sub-Adviser
has supplied to, or made available for review by, MassMutual (and if requested
by MassMutual to its designated auditor) all documents, statements, agreements
and workpapers reasonably requested by it relating to accounts covered by the
Sub-Adviser's performance results and which are in the Sub-Adviser's possession
or to which it has access.
The foregoing representations and warranties shall be continuing during the term
of this Sub-Advisory Agreement.
9. Representations and Warranties of MassMutual.
(a) MassMutual represents and warrants to the Sub-Adviser the
following:
(i) MassMutual has all requisite corporate power and authority
under the laws of the Commonwealth of Massachusetts and federal
securities laws and under the Advisory Agreement with the Fund to
execute, deliver and perform this Sub-Advisory Agreement.
(ii) MassMutual is a registered investment adviser under the
Advisers Act and is in material compliance with all other required
registrations under applicable federal and state law.
(iii) MassMutual has complied, in all material respects, with
all registrations required by, and will comply, in all material
respects, with all applicable rules and regulations of the Commission.
(iv) MassMutual has received a copy of Part II of
Sub-Adviser's Form ADV.
(v) There is no pending, or to the best of its knowledge,
threatened or contemplated action, suit or proceeding before or by any
court, governmental, administrative or self-regulatory body or
arbitration panel to which MassMutual is subject, which might
reasonably be expected to (i) result in any material adverse change in
MassMutual's condition (financial or otherwise) or (ii) materially
impair MassMutual's ability to discharge its obligations under this
Sub-Advisory Agreement.
The foregoing representations and warranties shall be continuing during the term
of this Sub-Advisory Agreement.
10. Covenants of the Sub-Adviser.
(a) If at any time during the term of this Sub-Advisory Agreement, the
Sub-Adviser discovers any fact or omission, or any event or change of
circumstances occurs, which would make the Sub-Adviser's representations and
warranties in Section 8 inaccurate or incomplete in any material respect, or
which might render the Disclosure Documents untrue or misleading in any material
respect, the Sub-Adviser will provide prompt written notification to the Fund
and MassMutual of any such fact, omission, event or change of circumstances, and
the facts related thereto.
(b) The Sub-Adviser agrees that, during the term of this Sub-Advisory
Agreement, and for so long as investment in the Fund is being offered for sale,
it will provide the Fund and MassMutual with updated information relating to the
Sub-Adviser's performance results as reasonably required from time to time by
the Fund and MassMutual. The Sub-Adviser shall use its best efforts to provide
such information within a reasonable period of time after the end of the month
to which such updated information relates and the information is available to
it.
11. Confidentiality.
All information and advice furnished by one party to the other party (including
their respective agents, employees and representatives) hereunder shall be
treated as confidential and shall not be disclosed to third parties, except as
may be necessary to comply with applicable laws, rules and regulations,
subpoenas or court orders. Without limiting the foregoing, MassMutual
acknowledges that the securities holdings of the Fund constitute information of
value to the Sub-Adviser, and agrees: (1) not to use for any purpose, other than
for MassMutual or the Fund, or their agents, to supervise or monitor the
Sub-Adviser, the holdings or other trading-related information of the Fund; and
(2) not to disclose the Fund's holdings, except: (a) as required by applicable
law or regulation; (b) as required by state or federal regulatory authorities;
(c) to the Board of Trustees of the Trust, counsel to the Board, counsel to the
Trust, the administrator or
any sub-administrator, the independent accountants and any other agent of the
Trust; or (d) as otherwise agreed to by the parties hereto in writing. Further,
MassMutual agrees that information supplied by the Sub-Adviser, including
approved lists, internal procedures, compliance procedures and any board
materials, is valuable to the Sub-Adviser, and MassMutual agrees not to disclose
any of the information contained in such materials, except: (i) as required by
applicable law or regulation; (ii) as required by state or federal regulatory
authorities; (iii) to the Board of Trustees of the Trust, counsel to the Board,
counsel to the Trust, the administrator or any sub-administrator, the
independent accountants and any other agent of the Trust; or (iv) as otherwise
agreed to by the parties hereto in writing.
Without limiting the foregoing, the Sub-Adviser agrees that any and all
information that it obtains pursuant to this Sub-Advisory Agreement regarding
MassMutual or its customers including, but not limited to, approved lists,
internal procedures, compliance procedures and any board materials, is valuable
to MassMutual and will be used exclusively to fulfill the Sub-Adviser's
obligations hereunder, and will not be disclosed to any other party, including
any affiliate of the Sub-Adviser or agent of the Fund, except (i) as necessary
for the Sub-Adviser to fulfill its obligations pursuant to this Sub-Advisory
Agreement, (ii) as required by applicable law or regulation; (iii) as required
by state or federal regulatory authorities; or (iv) as otherwise agreed to by
the parties hereto in writing. Notwithstanding the foregoing, MassMutual agrees
that the Sub-Adviser may identify it or the Fund as a client in promotional
materials.
12. Review of Fund Documents.
During the term of this Sub-Advisory Agreement, MassMutual shall furnish to the
Sub-Adviser at its principal office all prospectuses, proxy statements, reports
to shareholders, sales literature, or other material prepared for distribution
to shareholders of the Fund or the public, which refer to the Sub-Adviser or its
clients in any way, prior to the use thereof, and MassMutual shall not use any
such materials if the Sub-Adviser reasonably objects in writing five (5) days
(or such other time as may be mutually agreed, which would include longer time
periods for review of the Fund's prospectus and other parts of its registration
statement) after receipt thereof. MassMutual shall ensure that materials
prepared by employees or agents of MassMutual or its affiliates that refer to
the Sub-Adviser or its clients in any way are consistent with those materials
previously approved by the Sub-Adviser as referenced in the preceding sentence.
13. Use of Sub-Adviser's Name
The parties agree that the name of the Sub-Adviser, the names of any affiliates
of the Sub-Adviser and any derivative or logo or trademark or service ▇▇▇▇ or
trade name are the valuable property of the Sub-Adviser and its affiliates.
MassMutual and the Fund shall have the right to use such name(s), derivatives,
logos, trademarks or service marks or trade names only with the prior written
approval of the Sub-Adviser, which approval shall not be unreasonably withheld
or delayed so long as this Sub-Advisory Agreement is in effect. It is understood
that certain materials used in the ordinary course of business, such as
prospectuses, financial reports, fund fact sheets and materials provided to the
Trustees, do not require such prior approval.
Upon termination of this Sub-Advisory Agreement, MassMutual and the Fund shall
forthwith cease to use such name(s), derivatives, logos, trademarks or service
marks or trade names. MassMutual and the Fund agree that they will review with
the Sub-Adviser any advertisement, sales literature, or notice prior to its use
that makes reference to the Sub-Adviser or its affiliates or any such name(s),
derivatives, logos, trademarks, service marks or trade names to that the
Sub-Adviser may review the context in which it is referred to, it being agreed
that the Sub-Adviser
shall have no responsibility to ensure the adequacy of the form or content of
such materials for purposes of the Act or other applicable laws and regulations.
If MassMutual or the Fund makes any unauthorized use of the Sub-Adviser's names,
derivatives, logos, trademarks or service marks or trade names, the parties
acknowledge that the Sub-Adviser shall suffer irreparable harm for which
monetary damages are inadequate and thus, the Sub-Adviser shall be entitled to
injunctive relief.
14. Duration.
Unless terminated earlier pursuant to Section 15 hereof, this Sub-Advisory
Agreement shall remain in effect for a period of two years from the date hereof.
Thereafter it shall continue in effect from year to year, unless terminated
pursuant to Section 15 hereof, so long as such continuance shall be approved at
least annually by the Trust's Board of Trustees, including the vote of the
majority of the Trustees of the Trust who are not parties to this Sub-Advisory
Agreement or "interested persons" (as defined in the Act) of any such party cast
in person at a meeting called for the purpose of voting on such approval, or by
the holders of a "majority" (as defined in the Act) of the outstanding voting
securities of the Fund.
15. Termination.
(a) This Sub-Advisory Agreement shall terminate automatically upon its
unauthorized assignment (within the meaning of the Act), the termination of the
Advisory Agreement or the dissolution of the Fund.
(b) The Sub-Advisory Agreement may be terminated by MassMutual or the
Board of Trustees of the Trust: (i) by written notice to the Sub-Adviser with
immediate effect, if the Sub-Adviser's registration under the Adviser's Act is
suspended, terminated, lapsed or not renewed; (ii) by written notice to the
Sub-Adviser with immediate effect, if the Sub-Adviser is bankrupt or insolvent,
seeks an arrangement with creditors, is dissolved or terminated or ceases to
exist; (iii) by written notice to the Sub-Adviser with immediate effect, if
MassMutual or the Board of Trustees of the Trust determines for any reason, that
such termination is appropriate for the protection of the Fund, including
without limitation a determination by MassMutual or the Board of Trustees of the
Trust that the Sub-Adviser has breached an obligation or duty under this
Sub-Advisory Agreement; or (iv) in their sole discretion, without penalty, upon
sixty days prior written notice to Sub-Adviser. This Sub-Advisory Agreement also
may be terminated at any time, without penalty, by the vote of the holders of a
"majority" of the outstanding voting securities of the Fund (as defined in the
Act).
(c) The Sub-Advisory Agreement may be terminated by the Sub-Adviser,
without penalty at any time, upon sixty days' prior written notice, to
MassMutual and the Trust.
16. Indemnification.
(a) In any action in which MassMutual or the Fund or any of its or
their controlling persons, or any shareholders, partners, directors, officers
and/or employees of any of the foregoing, are parties, the Sub-Adviser agrees to
indemnify and hold harmless the foregoing persons against any loss, claim,
damage, charge, liability or expense (including, without limitation, reasonable
attorneys' and accountants' fees) to which such persons may become subject,
insofar as such loss, claim, damage, charge, liability or expense arises out of
or is based upon any demands, claims, liabilities, expenses, lawsuits, actions
or proceedings relating to this Sub-Advisory Agreement or to the advisory
services for the account of the Fund provided by the
Sub-Adviser, provided that the loss, claim, damage, liability, cost or expense
related to, was not based upon, or did not arise out of an act or omission of
MassMutual or the Fund or any of its or their officers, directors, employees,
affiliates or controlling persons constituting reckless disregard, willful
misfeasance, bad faith, gross negligence, fraud or willful misconduct.
(b) In any action in which the Sub-Adviser or any of its controlling
persons, or any shareholders, partners, directors, officers and/or employees of
any of the foregoing, are parties, MassMutual agrees to indemnify and hold
harmless the foregoing persons against any loss, claim, settlement, damage,
charge, liability or expense (including, without limitation, reasonable
attorneys' and accountants' fees) to which such persons may become subject,
insofar as such loss, claim, settlement, damage, charge, liability or expense
arises out of or is based upon any demands, claims, liabilities, expenses,
lawsuits, actions or proceedings relating to this Sub-Advisory Agreement, the
advisory services for the account of the Fund provided by the Sub-Adviser, the
operation of the Fund, the contents of the Disclosure Documents, or the wrongful
conduct of persons with respect to the sale of interests in the Fund, provided
that the loss, claim, damage, liability, cost or expense did not relate to, or
was not based upon, or did not arise out of an act or omission of the
Sub-Adviser, its shareholders, or any of its partners, officers, directors,
employees, agents or controlling persons constituting reckless disregard,
willful misfeasance, bad faith, gross negligence, fraud or willful misconduct.
(c) Promptly after receipt by an indemnified party under this Section
16 of notice of any claim or dispute or commencement of any action or
litigation, such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party under this Section 16, notify the
indemnifying party of the commencement thereof; but the omission to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 16 except to the extent,
if any, that such failure or delay prejudiced the other party in defending
against the claim. In case any such claim, dispute, action or litigation is
brought or asserted against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, to assume
the defense thereof, with counsel specially approved in writing by such
indemnified party, such approval not to be unreasonably withheld, following
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof; in which event, the indemnifying party will not
be liable to such indemnified party under this Section 16 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof, but shall continue to be liable to the indemnified party in all
other respects as heretofore set forth in this Section 16. Notwithstanding any
other provisions of this Section 16, if, in any claim, dispute, action or
litigation as to which indemnity is or may be available, any indemnified party
reasonably determines that its interests are or may be, in whole or in part,
adverse to the interests of the indemnifying party, the indemnified party may
retain its own counsel, with the choice of counsel subject to the consent of the
indemnifying party (which consent shall not be withheld unreasonably), in
connection with such claim, dispute, action or litigation and shall continue to
be indemnified by the indemnifying party for any legal or any other expenses
reasonably incurred in connection with investigating or defending such claim,
dispute, action or litigation.
17. Disclaimer of Shareholder Liability.
MassMutual and the Sub-Adviser understand that the obligations of the Trust
under this Sub-Advisory Agreement are not binding upon any Trustee or
shareholder of the Trust personally, but bind only the Trust and the Trust's
property. MassMutual and the Sub-Adviser represent that
each has notice of the provisions of the Trust Documents disclaiming shareholder
and Trustee liability for acts or obligations of the Trust.
18. Notice.
Any notice under this Sub-Advisory Agreement shall be in writing, addressed and
delivered or mailed, postage prepaid, to the other party, with a copy to the
Trust, at the addresses below or such other address as such other party may
designate for the receipt of such notice.
If to MassMutual: Massachusetts Mutual Life Insurance Company
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
If to the Sub-Adviser: Babson Capital Management LLC
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
With a copy to:
If to either MassMutual or the Sub-Adviser, copies to:
The DLB Fund Group
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
19. No Assignment.
No assignment (within the meaning of the Act) of this Sub-Advisory Agreement may
be made without the express written consent of all parties hereto.
20. Amendments to this Sub-Advisory Agreement.
This Sub-Advisory Agreement may be amended only by a written instrument approved
in writing by all parties hereto.
21. Governing Law.
This Sub-Advisory Agreement shall be governed by and construed in accordance
with the internal laws of the Commonwealth of Massachusetts, without giving
effect to principles of conflict of laws.
22. Survival.
The provisions of this Sub-Advisory Agreement shall survive the termination or
other expiration of this Sub-Advisory Agreement with respect to any matter
arising while this Sub-Advisory Agreement was in effect.
23. Successors.
This Sub-Advisory Agreement shall be binding upon and inure to the benefit of
the parties hereto and their successors and permitted assigns.
24. Entire Agreement.
This Sub-Advisory Agreement constitutes the entire agreement among the parties
hereto with respect to the matters referred to herein, and no other agreement,
oral or otherwise, shall be binding on the parties hereto.
25. No Waiver.
No failure or delay on the part of any party hereto in exercising any right,
power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
Any waiver granted hereunder must be in writing and shall be valid only in the
specific instance in which given.
26. Severability.
If any one or more provisions in this Sub-Advisory Agreement shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not effect any other provision
of this Sub-Advisory Agreement, but this Sub-Advisory Agreement shall be
construed so as to effectuate the intent of the parties hereto as nearly as
possible without giving effect to such invalid, illegal or unenforceable
provision had never been contained herein.
27. Counterparts.
This Sub-Advisory Agreement may be executed in any number of counterparts, each
of which shall constitute an original, but all of which when taken together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Fund, MassMutual and the Sub-Adviser have caused this
Sub-Advisory Agreement to be executed as of the day and year first above
written.
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: __________________________________
Name:
Title:
BABSON CAPITAL MANAGEMENT LLC
By: __________________________________
Name:
Title:
Accepted and Agreed to by:
THE DLB FUND GROUP
on behalf of the DLB Enhanced Index Value Fund II
By: __________________________________
Name:
Title:
Appendix A
The Sub-Adviser shall provide to MassMutual the following:
1. Quarterly Portfolio Data Sheets (due on the 10th business day after the end
of every quarter): The data sheets should include the following information:
a. Portfolio Characteristics for the Fund, standard and best fit market
index
b. Portfolio Sector Weights for the Fund, standard and best fit market
index.
c. Top 10 Equity Holdings (% of equities) for the Fund
d. Top 5 contributors and detractors by performance based on contribution
to the portfolio
e. Purchases (New) and Sales (Eliminated) during the quarter.
f. Performance of the Fund vs. standard and best fit market index and peer
group
2. Portfolio Manager Commentary (due on the 10th business day after the end
of every quarter): The commentary should include information on the
following topics (there is no limit to the number of words used):
a. Qualitative assessment by manager: list three factors that were the
major influences on performance - both positive and negative
b. Performance attribution:
- The industry weightings that had the largest contribution to
performance during the most recent quarter.
- The industry weightings that had the largest detraction from
performance during the most recent quarter.
- The five holdings that contributed the most to performance during
the most recent quarter.
- The five holdings that detracted the most from performance during
the most recent quarter.
c. The manager's market outlook.
d. How he/she has positioned the Fund for the near term.
3. Third party portfolio attribution analysis of the Fund: Performance
attribution should demonstrate the impact of portfolio management
decisions including Asset Allocation Effects and Security Selection
Effects.
4. Quarterly Conference Calls: The purpose of this contact will be to obtain
a greater understanding of the performance of the Fund, the reasons for
that performance, and to gain valuable insights into the Fund provided by
the manager
5. Annual On-Site Meeting - As part of MassMutual's due diligence process,
members of the Concert Investment Advisory Group arrange an "on site"
meeting with each of the managers in the Concert Investment Program.
Typically, these meetings include a general overview of the firm as well
as separate meetings with each of the portfolio managers to discuss their
long-term and short-term strategies, modifications to their investment
strategy or style and any other relevant information