EXHIBIT (d)(1)((d)
THE MAINSTAY FUNDS
MANAGEMENT AGREEMENT
Agreement, made as of the ___ day of December, 2001 between THE
MAINSTAY FUNDS, a Massachusetts business trust (the "Trust"), on behalf of its
series (the "Fund") as set forth on Schedule A, as amended from time to time,
and New York Life Investment Management LLC, a Delaware limited liability
company (the "Manager").
W I T N E S S E T H:
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the shares of beneficial interest of the Trust (the
"Shares") are divided into separate series, each of which is established
pursuant to a written instrument executed by the Trustees of the Trust and the
Trustees may from time to time terminate such series or establish and terminate
additional series; and
WHEREAS, the Trust desires to retain the Manager to render
investment advisory and related administrative services to the Fund, and the
Manager is willing to render such services on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, the parties agree as follows:
I. Appointment. The Fund hereby appoints New York Life Investment Management LLC
to act as manager to the Fund for the period and on the terms set forth in this
Agreement. The Manager accepts such appointment and agrees to render the
services herein described, for the compensation herein provided.
II. Duties as Manager. Subject to the supervision of the Trustees of the Trust,
the Manager shall administer the Fund's business affairs and manage the
investment operations of the Fund and the composition of the portfolio of the
Fund, including the purchase, retention and disposition of securities therein,
in accordance with the investment objectives, policies and restrictions of the
Fund, as stated in the currently effective Prospectus (as hereinafter defined)
and subject to the following understandings:
A. The Manager shall (i) furnish the Fund with office facilities; (ii)
be responsible for the financial and accounting records required to be
maintained by the Fund (excluding those being maintained by the Fund's
Custodian, Transfer Agent and Accounting Services Agent except as to which the
Manager has supervisory functions) and other than those being maintained by the
Fund's subadvisor, if any; and (iii) furnish the Fund with ordinary clerical,
bookkeeping and recordkeeping services at such office facilities.
B. The Manager shall provide supervision of the Fund's investments and
determine from time to time what investments or securities will be purchased,
retained, sold or lent by the Fund, and what portion of the Fund's assets will
be invested or held uninvested as cash.
C. The Manager shall use its best judgment in the performance of its
duties under this Agreement.
D. The Manager, in the performance of its duties and obligations under
this Agreement, shall act in conformity with the Declaration of Trust, By-Laws
and Prospectus (each as hereinafter defined) of the Trust and with the
instructions and directions of the Trustees of the Trust and will conform to and
comply with the requirements of the 1940 Act and all other applicable federal
and state laws and regulations.
E. The Manager, and any subadvisor to whom such authority has been
delegated, shall determine the securities to be purchased or sold by the Fund
and will place orders pursuant to its determination with or through such
persons, brokers or dealers (including NYLIFE Securities Inc.) in conformity
with the policy with respect to brokerage as set forth in the Trust's
Registration Statement and Prospectus (each as hereinafter defined) or as the
Trustees may direct from time to time. It is recognized that, in providing the
Fund with investment supervision or the placing of orders for portfolio
transactions, the Manager or any subadvisor will give primary consideration to
securing the most favorable price and efficient execution. Consistent with this
policy, the Manager or any subadvisor may consider the financial responsibility,
research and investment information and other services provided by brokers or
dealers who may effect or be a party to any such transaction or other
transactions to which other clients of the Manager or any subadvisor may be a
party. It is understood that neither the Fund, the Trust nor the Manager or any
subadvisor has adopted a formula for allocation of the Fund's investment
transaction business. It is also understood that it is desirable for the Fund
that the Manager or any subadvisor have access to supplemental investment and
market research and security and economic analyses provided by certain brokers
who may execute brokerage transactions at a higher cost to the Fund than may
result when allocating brokerage to other brokers on the basis of seeking the
most favorable price and efficient execution. Therefore, the Manager or any
subadvisor is authorized to place orders for the purchase and sale of securities
for the Fund with such certain brokers, subject to review by the Trust's
Trustees from time to time with respect to the extent and continuation of this
practice. It is understood that the services provided by such brokers may be
useful to the Manager or any subadvisor in connection with its services to other
clients.
On occasions when the Manager or any subadvisor deems the purchase
or sale of a security to be in the best interest of the Fund as well as other
clients, the Manager or any subadvisor, to the extent permitted by applicable
laws and regulations, may, but shall be under no obligation to, aggregate the
securities to be so sold or purchased in order to obtain the most favorable
price or lower brokerage commissions and efficient execution. In such event,
allocation of the securities so purchased or sold, as well as expenses incurred
in the transaction, will be made by the Manager or any subadvisor in the manner
it considers to be the most equitable and consistent with its fiduciary
obligations to the Fund and to such other clients.
F. The Manager shall maintain all books and records with respect to the
Fund's securities transactions required by sub-paragraphs (b)(5), (6), (9) and
(10) and paragraph (f) of Rule 31a-1 under the 1940 Act and any other books and
records required to be maintained by it under the 1940 Act and the Rules
thereunder and shall render to the Trust's Trustees such periodic and special
reports as the Trustees may reasonably request.
G. The Manager shall provide the Trust's Custodian on each business day
with information relating to the execution of all portfolio transactions
pursuant to standing instructions.
H. With respect to any or all series of the Trust, including the Fund,
the Manager may enter into one or more contracts ("Subadvisory" or
"Sub-Administration Contract") with a subadvisor or sub-administrator in which
the Manager delegates to such subadvisor or sub-administrator any or all its
duties specified in this Agreement, provided that the Subadvisory or
Sub-Administration Contract meets all applicable requirements of the 1940 Act
and rules thereunder.
III. Manager Personnel. The Manager shall authorize and permit any of its
directors, officers and employees who may be elected or appointed as Trustees or
officers of the Trust to serve in the capacities in which they are elected or
appointed. Services to be furnished by the Manager under this Agreement may be
furnished through the medium of any of such directors, officers, or employees.
IV. Books and Records. The Manager shall keep the Fund's books and records
required to be maintained by it, pursuant to paragraph 2 hereof. The Manager
agrees that all records which it maintains for the Fund are the property of the
Fund, and it will surrender promptly to the Fund any of such records upon the
Fund's request. The Manager further agrees to preserve for the periods
prescribed by Rule 31a-2 as promulgated by the Securities and Exchange
Commission (the "Commission") under the 1940 Act any such records as are
required to be maintained by the Manager pursuant to paragraph 2 hereof.
V. Services Not Exclusive. The services furnished by the Manager hereunder are
not to be deemed exclusive and the Manager shall be free to furnish similar
services to others so long as its services under this Agreement are not impaired
thereby.
VI. Documents. The Trust has delivered to the Manager copies of each of the
following documents and will deliver to it all future amendments and
supplements, if any:
A. Declaration of Trust of the Trust, filed with the Secretary of The
Commonwealth of Massachusetts (such Declaration of Trust, as in effect on the
date hereof and as amended from time to time, is herein called the "Declaration
of Trust");
B. By-Laws of the Trust (such By-Laws, as in effect on the date hereof
and as amended from time to time, are herein called the "By-Laws");
C. Certified Resolutions of the Trustees of the Trust authorizing the
appointment of the Manager and approving the form of this Agreement;
D. Written Instrument to Establish and Designate Separate Series of
Shares;
E. Registration Statement under the 1940 Act and the Securities Act of
1933, as amended, on Form N-1A (the "Registration Statement"), as filed with the
Commission, relating to the Fund and the Fund's Shares and all amendments
thereto;
F. Notification of Registration of the Trust under the 1940 Act on Form
N-8A as filed with the Commission and all amendments thereto; and
G. The form of Prospectus and Statement of Additional Information of
the Trust (such Prospectus and Statement of Additional Information, as currently
in effect and as amended or supplemented from time to time, being herein called
collectively the "Prospectus").
VII. Expenses. A. In connection with the services rendered by the Manager under
this Agreement, the Manager will bear all of the following expenses:
1. the salaries and expenses of all personnel of the Trust and the
Manager, except the fees and expenses of Trustees who are not interested persons
of the Manager or of the Trust; and
2. all expenses incurred by the Manager in connection with managing the
investment operations of the Fund and administering the ordinary course of the
Fund's business, other than those assumed by the Fund herein;
B. the Fund assumes and will pay its expenses, including but not
limited to those described below (where any such category applies to more than
one series of the Trust, the Fund shall be liable only for its allocable portion
of the expenses):
1. the fees and expenses of Trustees who are not interested persons of
the Manager or of the Trust;
2. the fees and expenses of the Fund's custodian which relate to (A)
the custodial function and the recordkeeping connected therewith, (B) the
maintenance of the required accounting records of the Fund not being maintained
by the Manager, (C) the pricing of the Fund's Shares, including the cost of any
pricing service or services which may be retained pursuant to the authorization
of the Trustees of the Trust, and (D) for both mail and wire orders, the
cashiering function in connection with the issuance and redemption of the Fund's
Shares;
3. the fees and expenses of the Trust's transfer and dividend
disbursing agent, which may be the custodian, which relate to the maintenance of
the shareholder account;
4. the charges and expenses of legal counsel (including an allocable
portion of the cost of maintaining an internal legal and compliance department)
and independent accountants for the Trust;
5. brokers' commissions and any issue or transfer taxes chargeable to
the Trust in connection with its securities transactions on behalf of the Fund;
6. all taxes and business fees payable by the Trust or the Fund to
federal, state or other governmental agencies;
7. the fees of any trade association of which the Trust may be a
member;
8. the cost of share certificates representing Fund Shares;
9. the fees and expenses involved in registering and maintaining
registrations of the Trust and of its Shares with the Commission, registering
the Trust as a broker or dealer and qualifying its Shares under state securities
laws, including the preparation and printing of the Trust's registration
statements and prospectuses for filing under federal and state securities laws
for such purposes;
10. allocable communications expenses with respect to investor services
and all expenses of shareholders' and Trustees' meetings and of preparing,
printing and mailing reports to shareholders in the amount necessary for
distribution to the shareholders;
11. litigation and indemnification expenses and other extraordinary
expenses not incurred in the ordinary course of the Trust's business; and
12. any expenses assumed by the Fund pursuant to a Plan of Distribution
adopted in conformity with Rule 12b-1 under the 1940 Act.
VIII. Organization Expenses. The Fund hereby agrees to reimburse the Manager for
the organization expenses of, and the expenses incurred in connection with, the
initial offering of Shares of the Fund.
IX. Compensation. For the services provided and the facilities furnished
pursuant to this Agreement, the Trust will pay to the Manager as full
compensation therefor a fee at an annual rate, as set forth opposite the Fund's
name on Schedule A, of the average daily net assets of the Fund.
This fee will be computed daily and will be paid to the Manager
monthly. This fee will be chargeable only to the Fund, and no other series of
the Trust shall be liable for the fee due and payable hereunder. The Fund shall
not be liable for any expense of any other series of the Trust.
X. Standard of Care. Subject to the applicable law, the Manager shall not be
liable for any error of judgment or for any loss suffered by the Fund in
connection with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith or gross negligence on its part in
the performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement.
XI. Duration and Termination. This Agreement shall continue in effect with
respect to the Fund for a period of more than two years from the date hereof
only so long as such continuance is specifically approved at least annually with
respect to the Fund in conformity with the requirements of the 1940 Act and the
Rules thereunder; provided, however, that this Agreement may be terminated with
respect to the Fund at any time, without the payment of any penalty, by the
Trustees of the Trust or by vote of a majority of the outstanding voting
securities (as defined in the 0000 Xxx) of the Fund, or by the Manager at any
time, without the payment of any penalty, on not more than 60 days' nor less
than 30 days' written notice to the other party. This Agreement shall terminate
automatically in the event of its assignment (as defined in the 1940 Act).
XII. Other Business. Nothing in this Agreement shall limit or restrict the right
of any of the Manager's directors, officers, or employees who may also be a
Trustee, officer, or employee of the Trust to engage in any other business or to
devote his time and attention in part to the management or other aspects of any
business, whether of a similar or dissimilar nature, nor limit or restrict the
Manager's right to engage in any other business or to render services of any
kind to any other corporation, trust, firm, individual or association.
XIII. Independent Contractor. Except as otherwise provided herein or authorized
by the Trustees of the Trust from time to time, the Manager shall for all
purposes herein be deemed to be an independent contractor and shall have no
authority to act for or represent the Fund or the Trust in any way or otherwise
be deemed an agent of the Fund or the Trust.
XIV. Trust Materials. During the term of this Agreement, the Trust agrees to
furnish the Manager 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 to the public,
which refer to the Manager in any way, prior to use thereof and, not to use such
material if the Manager reasonably objects in writing within five business days
(or such other time as may be mutually agreed) after receipt thereof. In the
event of termination of this Agreement, the Trust will continue to furnish to
the Manager copies of any of the above-mentioned materials which refer in any
way to the Manager. The Trust shall furnish or otherwise make available to the
Manager such other information relating to the business affairs of the Fund as
the Manager at any time, or from time to time, reasonably requests in order to
discharge its obligations hereunder.
XV. Amendment. This Agreement may be amended in writing by mutual consent, but
the consent of the Fund, if required, must be obtained in conformity with the
requirements of the 1940 Act and the Rules thereunder.
XVI. Notice. Any notice or other communication required to be given pursuant to
this Agreement shall be deemed duly given if delivered or mailed by registered
mail, postage prepaid, (1) to the Manager at NYLIM Center, 000 Xxxxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000; or (2) to the Trust at 00 Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000.
XVII. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
XVIII. Limitation of Liability of the Trust and the Shareholders. It is
understood and expressly stipulated that none of the Trustees, officers, agents
or shareholders of the Trust shall be personally liable hereunder. The name "The
MainStay Funds" is the designation of the Trust for the time being under the
Declaration of Trust and all persons dealing with the Trust must look solely to
the property of the Trust for the enforcement of any claims against the Trust,
as neither the Trustees, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Trust. No series of the
Trust shall be liable for any claims against any other series of the Trust.
XIX. Use of Name. The Fund may use any name including the word "MainStay" only
for so long as this Agreement or any other agreement between the Manager or any
other affiliate of New York Life Insurance Company and the Trust or any
extension, renewal or amendment thereof remains in effect, including any similar
agreement with any organization which shall have succeeded to the Manager's
business as investment adviser. At such time as such an agreement shall no
longer be in effect, the Fund will (to the extent that it lawfully can) cease to
use such name or any other name indicting that it is advised by or otherwise
connected with the Manager or any organization which shall have so succeeded to
its business.
XX. Miscellaneous. The captions in 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. If any provision of this
Agreement shall be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected thereby. As
used in this Agreement, terms shall have the same meaning as such terms have in
the 1940 Act. Where the effect of a requirement of the federal securities laws
reflected in any provision of this Agreement is made less restrictive by a rule,
regulation or order of the Commission, whether of special or general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation or order. This Agreement may be signed in counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be executed by their officers designated below as of the day and year first
above written.
THE MAINSTAY FUNDS, on behalf of
the series listed on Schedule A
By:
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Name:
Title:
NEW YORK LIFE INVESTMENT MANAGEMENT LLC
By:
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Name:
Title:
SCHEDULE A
FUND ANNUAL RATE*
U.S. Large Cap Equity Fund 0.65%
* of the Fund's average daily net assets
