EXHIBIT D(1)
THE MAINSTAY FUNDS
AMENDED AND RESTATED MANAGEMENT AGREEMENT
Amended and Restated Management Agreement, made as of the 1st day of August
2007, between The MainStay Funds, a Massachusetts business trust (the "Trust"),
on behalf of its series as set forth on Schedule A (each, a "Fund," and
collectively, the "Funds"), as amended from time to time, and New York Life
Investment Management LLC, a Delaware limited liability company (the "Manager").
WITNESSETH:
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
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, each Fund 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; and
WHEREAS, the Trust entered into an Amended and Restated Management
Agreement, dated as of August 1, 2002 (the "Prior Agreement"); and
WHEREAS, this Agreement amends and restates, in its entirety, the Prior
Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Appointment. Each 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.
2. Duties as Manager. Subject to the supervision of the Trustees of the
Trust, the Manager shall administer each Fund's business affairs and manage the
investment operations of each Fund and the composition of the portfolio of each
Fund, including the purchase, retention and disposition of securities therein,
in accordance with the investment objectives, policies and restrictions of each
Fund, as stated in the currently effective Prospectus (as hereinafter defined)
and subject to the following understandings:
(a) The Manager shall (i) furnish each Fund with office facilities;
(ii) be responsible for the financial and accounting records required to be
maintained by each 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 sub-adviser, if any; and (iii)
furnish each Fund with ordinary clerical, bookkeeping and recordkeeping services
at such office facilities.
(b) The Manager shall provide supervision of each 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 sub-adviser to whom such authority has been
delegated, shall determine the securities to be purchased or sold by each 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 a
Fund with investment supervision or the placing of orders for portfolio
transactions, the Manager or any sub-adviser will give primary consideration to
securing the most favorable price and efficient execution. Consistent with this
policy, the Manager or any sub-adviser 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 sub-adviser may
be a party. It is understood that none of the Funds, the Trust nor the Manager
or any sub-adviser has adopted a formula for allocation of a Fund's investment
transaction business. It is also understood that it is desirable for each Fund
that the Manager or any sub-adviser 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 a 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
sub-adviser is authorized to place orders for the purchase and sale of
securities for a 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 sub-adviser in connection with its services
to other clients.
On occasions when the Manager or any sub-adviser deems the purchase or sale
of a security to be in the best interest of a Fund as well as other clients, the
Manager or any sub-adviser, 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,
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allocation of the securities so purchased or sold, as well as expenses incurred
in the transaction, will be made by the Manager or any sub-adviser in the manner
it considers to be the most equitable and consistent with its fiduciary
obligations to that Fund and to such other clients.
(f) The Manager shall maintain all books and records with respect to
each 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
Funds, the Manager may enter into one or more contracts ("Sub-Advisory or
Sub-Administration Contract") with a sub-adviser or sub-administrator in which
the Manager delegates to such sub-adviser or sub-administrator any or all its
duties specified in this Agreement, provided that each Sub-Advisory or
Sub-Administration Contract meets all applicable requirements of the 1940 Act
and the rules thereunder.
The Trust and Manager understand and agree that the Manager may manage a
Fund in a "manager-of-managers" style with either a single or multiple
subadvisors, which contemplates that the Manager will, among other things and
pursuant to an Order issued by the Securities and Exchange Commission (SEC): (i)
continually evaluate the performance of each subadvisor to a Fund, if
applicable, through quantitative and qualitative analysis and consultations with
such subadvisor; (ii) periodically make recommendations to the Board as to
whether the contract with one or more subadvisors should be renewed, modified,
or terminated; and (iii) periodically report to the Board regarding the results
of its evaluation and monitoring functions. The Trust recognizes that a
subadvisor's services may be terminated or modified pursuant to the
"manager-of-managers" process, and that the Manager may appoint a new subadvisor
for a subadvisor that is so removed.
3. 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.
4. Books and Records. The Manager shall keep the Funds' books and records
required to be maintained by it, pursuant to paragraph 2 hereof. The Manager
agrees that all records which it maintains for a Fund are the property of such
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.
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5. 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.
6. 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 each Fund and each 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) Each 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").
7. Expenses. (a) In connection with the services rendered by the Manager
under this Agreement, the Manager will bear all of the following expenses:
(i) 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
(ii) all expenses incurred by the Manager in connection with
managing the investment operations of each Fund and administering the ordinary
course of each Fund's business, other than those assumed by the Funds herein;
(b) Each 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, each Fund shall be liable only for its allocable
portion of the expenses):
(i) the fees and expenses of Trustees who are not interested
persons of the Manager or of the Trust.;
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(ii) the fees and expenses of each 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 Funds not being maintained
by the Manager, (C) the pricing of the Funds' 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 Funds'
Shares;
(iii) the fees and expenses of the Trust's transfer and dividend
disbursing agent, which may be the custodian, which relate to the maintenance of
each shareholder account;
(iv) 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;
(v) brokers' commissions and any issue or transfer taxes
chargeable to the Trust in connection with its securities transactions on behalf
of the Funds;
(vi) all taxes and business fees payable by the Trust or the
Funds to federal, state or other governmental agencies;
(vii) the fees of any trade association of which the Trust may be
a member;
(viii) the cost of share certificates representing Fund Shares;
(ix) 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;
(x) 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;
(xi) litigation and indemnification expenses and other
extraordinary expenses not incurred in the ordinary course of the Trust's
business; and
(xii) any expenses assumed by the Funds pursuant to a Plan of
Distribution adopted in conformity with Rule 12b-1 under the 1940 Act
8. Organization Expenses. Each 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 that Fund.
9. 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
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annual rate, as set forth opposite each Fund's name on Schedule A, of the
average daily net assets of each Fund.
This fee will be computed daily and will be paid to the Manager monthly.
This fee will be chargeable only to the respective Fund, and no other series of
the Trust shall be liable for the fee due and payable hereunder. No Fund shall
be liable for any expense of any other series of the Trust.
10. 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 a 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.
11. Duration and Termination. This Agreement shall continue in effect with
respect to each Fund for a period of one year from the effective date hereof
(except with respect to any series of the Trust added to Schedule A of this
Agreement after August 1, 2002, for an initial period of two years from the date
that such series is added) and thereafter only so long as such continuance is
specifically approved at least annually with respect to that 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 a 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 that 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).
12. 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.
13. 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 any Fund or the Trust in any way or otherwise
be deemed an agent of any Fund or the Trust.
14. 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 a 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
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the Manager such other information relating to the business affairs of each Fund
as the Manager at any time, or from time to time, reasonably requests in order
to discharge its obligations hereunder.
15. Amendment. This Agreement may be amended in writing by mutual consent,
but the consent of each of the Funds, if required, must be obtained in
conformity with the requirements of the 1940 Act and the rules thereunder.
16. 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.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
18. 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.
19. Use of Name. Each 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 respective Fund will (to the extent that it lawfully
can) cease to use such name or any other name indicating that it is advised by
or otherwise connected with the Manager or any organization which shall have so
succeeded to its business.
20. 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.
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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 each
series listed on Schedule A
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
NEW YORK LIFE INVESTMENT MANAGEMENT LLC
By: Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
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SCHEDULE A
(as amended and restated on August 1, 2007)
FUNDS ANNUAL RATE(1)
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Capital Appreciation Fund 0.72%(2)
Common Stock Fund* 0.70%(3)
Convertible Fund 0.60%(4)
Diversified Income Fund* 0.60%(3)
Equity Index Fund 0.25%(5)
Global High Income Fund* 0.70%(3)
Government Fund 0.60%(6)
High Yield Corporate Bond Fund 0.60%(7)
International Equity Fund 0.90%(3, 8)
Large Cap Growth Fund 0.80%(9)
MAP Fund 0.75%(10)
Mid Cap Growth Fund 0.75%(3)
Mid Cap Value Fund* 0.70%(3)
Money Market Fund 0.50%(11)
Small Cap Growth Fund 1.00%(10)
Small Cap Value Fund 0.85%(10, 12)
Tax Free Bond Fund 0.60%(10)
Total Return Fund 0.64%(13)
Value Fund 0.72%(14)
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* Name changes effective January 1, 2004.
(1) Of each Fund's average daily net assets.
(2) Contractual fee breakpoints as follows: 0.72% on assets up to $200 million;
0.65% on assets from $200 million up to $500 million; and 0.50% on assets
in excess of $500 million.
(3) The Board of Trustees approved a 0.05% contractual fee reduction on assets
in excess of $500 million for each of these 6 funds, effective August 1,
2004.
(4) Contractual fee breakpoints as follows: 0.60% on assets up to $500 million,
0.55% on assets from $500 million up to $1.0 billion; and 0.50% on assets
in excess of $1.0 billion.
(5) At a meeting held on June 14, 2005, the Board of Trustees approved
contractual fee breakpoints effective August 1, 2005 as follows: 0.25% on
assets up to $1.0 billion, 0.225% on assets from $1.0 billion up to $3.0
billion; and 0.20% on assets in excess of $3.0 billion.
(6) Contractual fee breakpoints as follows: 0.60% on assets up to $1 billion;
and 0.55% on assets in excess of $1 billion.
(7) Contractual fee breakpoints as follows: 0.60% on assets up to $500 million,
0.55% on assets from $500 million to $5.0 billion; and 0.525% on assets in
excess of $5.0 billion.
(8) Effective January 1, 2004, the management fee payable by the Fund was
reduced to 0.90% of the Fund's average daily net assets.
(9) Contractual fee breakpoints as follows: 0.80% on assets up to $250 million;
0.75% on assets from $250 million up to $500 million; 0.725% on assets from
$500 million up to $750 million; 0.70% on assets from $750 million up to $2
billion; 0.65% on assets from $2 billion up to $3 billion; and 0.60% on
assets in excess of $3 billion.
(10) At a meeting held on June 10, 2003, the Board of Trustees approved a 0.05%
contractual fee reduction on assets in excess of $1.0 billion for each of
these 4 funds, effective immediately.
(11) Contractual fee breakpoints as follows: 0.50% on assets up to $300 million;
0.45% on assets from $300 million up to $700 million; 0.40% on assets from
$700 million up to $1 billion; and 0.35% on assets in excess of $1 billion.
(12) Effective July 1, 2004, the management fee payable by the Fund was
contractually reduced from 1.00% to 0.85% of the Fund's average daily net
assets (in connection with the approval of a new sub-advisory agreement
with MacKay Xxxxxxx LLC).
(13) Contractual fee breakpoints as follows: 0.64% on assets up to $500 million;
and 0.60% on assets in excess of $500 million.
(14) Contractual fee breakpoints as follows: 0.72% on assets up to $200 million;
0.65% on assets from $200 million up to $500 million; and 0.50% on assets
in excess of $500 million.
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