EXHIBIT d(2)(c)
FORM OF AMENDED AND RESTATED SUB-ADVISORY AGREEMENT
AMENDED AND RESTATED SUB-ADVISORY AGREEMENT made this 1st day of August,
2002 between New York Life Investment Management LLC, a Delaware limited
liability company (the "Manager"), on behalf of The MainStay Funds (the
"Trust"), and Gabelli Asset Management Company, a New York corporation (the
"Subadviser").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end, management investment
company; and
WHEREAS, the Trust is authorized to issue separate series, each of which
will offer a separate class of shares of beneficial interest, each series having
its own investment objective or objectives, policies, and limitations; and
WHEREAS, the Trust currently offers shares in multiple series, may offer
shares of additional series in the future, and intends to offer shares of
additional series in the future; and
WHEREAS, the Subadviser entered into a Sub-Advisory Agreement, dated May
31, 1998, by and between the Subadviser and MainStay Management Inc. ("MMI")
whereby the Subadviser agreed to furnish certain investment advisory services to
one or more of the series of the Trust; and
WHEREAS, the Sub-Advisory Agreement was amended effective October 1,
1999 to reflect the conversion of MMI from a corporation to a limited liability
company under Delaware law and to replace MMI with MainStay Management LLC ("MM
LLC"); and
WHEREAS, pursuant to a Substitution Agreement, dated January 2, 2001, by
and between MM LLC and New York Life Investment Management LLC ("NYLIM"), NYLIM
assumed all the interests, rights and responsibilities of MM LLC under the
Sub-Advisory Agreement, dated May 31, 1998, as further amended effective October
1, 1999, and agreed to perform all of MM LLC's duties and responsibilities under
such Agreement; and
WHEREAS, the Manager has entered into an Amended and Restated Management
Agreement, dated August 1, 2002, with the Trust, on behalf of the Funds, which
amends and restates in its entirety the Management Agreement, dated October 21,
1997, as further amended on October 1, 1999 (collectively, the "Management
Agreement"), to reflect the current parties of the Management Agreement, to
reflect certain contractual management fee breakpoints and to make certain
ministerial changes designed to facilitate the administration of that Agreement;
and
WHEREAS, under the Management Agreement, the Manager has agreed to
provide certain investment advisory and related administrative service to each
Fund; and
WHEREAS, the Management Agreement permits the Manager to delegate
certain of its investment advisory duties under the Management Agreement to a
sub-adviser; and
WHEREAS, the Manager wishes to retain the Subadviser to furnish certain
investment advisory services to one or more of the series of the Trust, and the
Subadviser is willing to furnish such services; and
WHEREAS, this Agreement amends and restates, in its entirety, the
Sub-Advisory Agreement, dated May 31, 1998, as further amended effective October
1, 1999, by and between the Subadviser and MM LLC in order to reflect the
current parties of the Sub-Advisory Agreement and to make certain other
ministerial changes designed to facilitate the administration of this Agreement;
NOW THEREFORE, in consideration of the premises and the promises and
mutual covenants herein contained, it is agreed between the Trust, the Manager,
and the Subadviser as follows:
1. Appointment. The Manager hereby appoints Gabelli Asset
Management Company to act as sub-adviser to the series designated on Schedule A
of this Agreement (the "Series") for the periods and on the terms set forth in
this Agreement. The Subadviser accepts such appointment and agrees to furnish
the services herein set forth for the compensation herein provided.
In the event the Trust designates one or more series other than
the Series with respect to which the Trust and the Manager wish to retain the
Subadviser to render investment advisory services hereunder, they shall notify
the Subadviser in writing. If the Subadviser is willing to render such services,
it shall notify the Trust and Manager in writing, whereupon such series shall
become a Series hereunder, and be subject to this Agreement.
2. Portfolio Management Duties. Subject to the supervision
of the Trust's Board of Trustees and the Manager, the Subadviser will provide a
continuous investment program for the Series' portfolio and determine the
composition of the assets of the Series' portfolio, including determination of
the purchase, retention, or sale of the securities, cash, and other investments
contained in the portfolio. The Subadviser will provide investment research and
conduct a continuous program of evaluation, investment, sales, and reinvestment
of the Series' assets by determining the securities and other investments that
shall be purchased, entered into, sold, closed, or exchanged for the Series,
when these transactions should be executed, and what portion of the assets of
the Series should be held in the various securities and other investments in
which it may invest, and the Subadviser is hereby authorized to execute and
perform such services on behalf of the Series. The Subadviser will provide the
services under this Agreement in accordance with the Series' investment
objective or objectives, policies, and restrictions as stated in the Trust's
Registration Statement filed with the Securities and Exchange Commission (the
"Commission"), as amended, copies of which shall be sent to the Subadviser by
the Manager. The Subadviser further agrees as follows:
(a) The Subadviser will not cause the Series to fail to
comply with the diversification and qualifying income requirements of Subchapter
M of the Internal Revenue Code.
(b) The Subadviser will conform with the 1940 Act and all
rules and regulations thereunder, all other applicable federal and state laws
and regulations, with any applicable procedures adopted by the Trust's Board of
Trustees of which the Subadviser has been sent a copy, and the provisions of the
Registration Statement of the Trust under the Securities Act of 1933 (the "1933
Act") and the 1940 Act, as supplemented or amended, of which the Subadviser has
received a copy.
(c) On occasions when the Subadviser deems the purchase or
sale of a security to be in the best interest of the Series as well as of other
investment advisory clients of the Subadviser or any of its affiliates, the
Subadviser may, to the extent permitted by applicable laws and regulations, but
shall not be obligated to, aggregate the securities to be so sold or purchased
with those of its other clients where such aggregation is not inconsistent with
the policies set forth in the Registration Statement. In such event, allocation
of the securities so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Subadviser in a manner that is fair and
equitable in the judgment of the Subadviser in the
2
exercise of its fiduciary obligations to the Trust and to such other clients,
subject to review by the Manager and the Board of Trustees.
(d) In connection with the purchase and sale of securities
for the Series, the Subadviser will arrange for the transmission to the
custodian and portfolio accounting agent for the Series on a daily basis, such
confirmation, trade tickets, and other documents and information, including, but
not limited to, Cusip, Sedol, or other numbers that identify securities to be
purchased or sold on behalf of the Series, as may be reasonably necessary to
enable the custodian and portfolio accounting agent to perform its
administrative and recordkeeping responsibilities with respect to the Series.
With respect to portfolio securities to be purchased or sold through the
Depository Trust Company, the Subadviser will arrange for the automatic
transmission of the confirmation of such trades to the Trust's custodian and
portfolio accounting agent.
(e) The Subadviser will monitor on a daily basis the
determination by the portfolio accounting agent for the Trust of the valuation
of portfolio securities and other investments of the Series. The Subadviser will
assist the custodian and portfolio accounting agent for the Trust in determining
or confirming, consistent with the procedures and policies stated in the
Registration Statement for the Trust, the value of any portfolio securities or
other assets of the Series for which the custodian and portfolio accounting
agent seeks assistance from, or identifies for review by, the Subadviser.
(f) The Subadviser will make available to the Trust and the
Manager, promptly upon request, all of the Series' investment records and
ledgers maintained by the Subadviser (which shall not include the records and
ledgers maintained by the custodian or portfolio accounting agent for the Trust)
as are necessary to assist the Trust and the Manager to comply with requirements
of the 1940 Act and the Investment Advisers Act of 1940 (the "Advisers Act"), as
well as other applicable laws. The Subadviser will furnish to regulatory
authorities having the requisite authority any information or reports in
connection with such services which may be requested in order to ascertain
whether the operations of the Trust are being conducted in a manner consistent
with applicable laws and regulations.
(g) The Subadviser will provide reports to the Trust's Board
of Trustees for consideration at meetings of the Board on the investment program
for the Series and the issuers and securities represented in the Series'
portfolio, and will furnish the Trust's Board of Trustees with respect to the
Series such periodic and special reports as the Trustees and the Manager may
reasonably request.
(h) In rendering the services required under this Agreement,
the Subadviser may, from time to time, employ or associate with itself such
person or persons as it believes necessary to assist it in carrying out its
obligations under this Agreement. However, the Subadviser may not retain as
sub-adviser any company that would be an "investment adviser," as that term is
defined in the 1940 Act, to the Series unless the contract with such company is
approved by a majority of the Trust's Board of Trustees and a majority of
Trustees who are not parties to any agreement or contract with such company and
who are not "interested persons," as defined in the 1940 Act, of the Trust, the
Manager, or the Subadviser, or any such company that is retained as sub-adviser,
and is approved by the vote of a majority of the outstanding voting securities
of the applicable Series of the Trust to the extent required by the 1940 Act.
The Subadviser shall be responsible for making reasonable inquiries and for
reasonably ensuring that any employee of the Subadviser, any sub-adviser that
the Subadviser has employed or with which it has associated with respect to the
Series, or any employee thereof has not, to the best of the Subadviser's
knowledge, in any material connection with the handling of Trust assets:
(i) been convicted, in the last ten (10) years, of any
felony or misdemeanor arising out of conduct involving embezzlement, fraudulent
conversion, or misappropriation of funds or securities,
3
involving violations of Sections 1341, 1342, or 1343 of Xxxxx 00, Xxxxxx Xxxxxx
Code, or involving the purchase or sale of any security; or
(ii) been found by any state regulatory authority, within the
last ten (10) years, to have violated or to have acknowledged violation of any
provision of any state insurance law involving fraud, deceit, or knowing
misrepresentation; or
(iii) been found by any federal or state regulatory
authorities, within the last ten (10) years, to have violated or to have
acknowledged violation of any provision of federal or state securities laws
involving fraud, deceit, or knowing misrepresentation.
3. Broker-Dealer Selection. The Subadviser is responsible
for decisions to buy and sell securities and other investments for the Series'
portfolio, broker-dealer selection, and negotiation of brokerage commission
rates. The Subadviser's primary consideration in effecting a security
transaction will be to obtain the best execution for the Series, taking into
account the factors specified in the prospectus and/or statement of additional
information for the Trust, which include price (including the applicable
brokerage commission or dollar spread), the size of the order, the nature of the
market for the security, the timing of the transaction, the reputation, the
experience and financial stability of the broker-dealer involved, the quality of
the service, the difficulty of execution, and the execution capabilities and
operational facilities of the firm involved, and the firm's risk in positioning
a block of securities. Accordingly, the price to the Series in any transaction
may be less favorable than that available from another broker-dealer if the
difference is reasonably justified, in the judgment of the Subadviser in the
exercise of its fiduciary obligations to the Trust, by other aspects of the
portfolio execution services offered. Subject to such policies as the Board of
Trustees may determine and consistent with Section 28(e) of the Securities
Exchange Act of 1934, the Subadviser shall not be deemed to have acted
unlawfully or to have breached any duty created by this Agreement or otherwise
solely by reason of its having caused the Series to pay a broker-dealer for
effecting a portfolio investment transaction in excess of the amount of
commission another broker-dealer would have charged for effecting that
transaction, if the Subadviser or its affiliate determines in good faith that
such amount of commission was reasonable in relation to the value of the
brokerage and research services provided by such broker-dealer, viewed in terms
of either that particular transaction or the Subadviser's or its affiliate's
overall responsibilities with respect to the Series and to their other clients
as to which they exercise investment discretion. To the extent consistent with
these standards and with the Trust's Procedures for Securities Transactions with
Affiliated Brokers pursuant to Rule 17e-1, the Subadviser is further authorized
to allocate the orders placed by it on behalf of the Series to the Subadviser if
it is registered as a broker-dealer with the Commission, to its affiliated
broker-dealer, or to such brokers and dealers who also provide research or
statistical material, or other services to the Series, the Subadviser, or an
affiliate of the Subadviser. Such allocation shall be in such amounts and
proportions as the Subadviser shall determine consistent with the above
standards, and the Subadviser will report on said allocation regularly to the
Board of Trustees of the Trust indicating the broker-dealers to which such
allocations have been made and the basis therefor.
4. Disclosure about Subadviser. The Subadviser has reviewed
the post-effective amendment to the Registration Statement for the Trust filed
with the Commission that contains disclosure about the Subadviser, and
represents and warrants that, with respect to the disclosure about the
Subadviser or information relating, directly or indirectly, to the Subadviser,
such Registration Statement contains, as of the date hereof, no untrue statement
of any material fact and does not omit any statement of a material fact which
was required to be stated therein or necessary to make the statements contained
therein not misleading. The Subadviser further represents and warrants that it
is a duly registered investment adviser under the Advisers Act and a duly
registered investment adviser in all states in which the Subadviser is required
to be registered.
4
5. Expenses. During the term of this Agreement, the
Subadviser will pay all expenses incurred by it and its staff and for their
activities in connection with its portfolio management duties under this
Agreement. The Manager or the Trust shall be responsible for all the expenses of
the Trust's operations including, but not limited to:
(a) the fees and expenses of Trustees who are not interested
persons of the Manager or of the Trust;
(b) the fees and expenses of each Series which relate to (A)
the custodial function and the recordkeeping connected therewith, (B) the
maintenance of the required accounting records of the Series not being
maintained by the Manager, (C) the pricing of the Series' 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 Series' Shares;
(c) 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;
(d) 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;
(e) brokers' commissions and any issue or transfer taxes
chargeable to the Trust in connection with its securities transactions on behalf
of the Series;
(f) all taxes and business fees payable by the Trust or the
Series to federal, state or other governmental agencies;
(g) the fees of any trade association of which the Trust may
be a member;
(h) the cost of share certificates representing Series'
Shares;
(i) 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;
(j) 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;
(k) litigation and indemnification expenses and other
extraordinary expenses not incurred in the ordinary course of the Trust's
business; and
(l) any expenses assumed by the Series pursuant to a Plan of
Distribution adopted in conformity with Rule 12b-1 under the 1940 Act.
6. Compensation. For the services provided, the Manager
will pay the Subadviser a fee, payable monthly, as described on Schedule A.
7. Seed Money. The Manager agrees that the Subadviser shall
not be responsible for providing money for the initial capitalization of the
Series.
5
8. Compliance.
(a) The Subadviser agrees that it shall immediately notify
the Manager and the Trust (1) in the event that the Commission has censured the
Subadviser; placed limitations upon its activities, functions or operations;
suspended or revoked its registration as an investment adviser; or has commenced
proceedings or an investigation that may result in any of these actions, (2)
upon having a reasonable basis for believing that the Series has ceased to
qualify or might not qualify as a regulated investment company under Subchapter
M of the Internal Revenue Code. The Subadviser further agrees to notify the
Manager and the Trust immediately of any material fact known to the Subadviser
respecting or relating to the Subadviser that is not contained in the
Registration Statement or prospectus for the Trust, or any amendment or
supplement thereto, or of any statement contained therein that becomes untrue in
any material respect.
(b) The Manager agrees that it shall immediately notify the
Subadviser (1) in the event that the Commission has censured the Manager or the
Trust; placed limitations upon either of their activities, functions, or
operations; suspended or revoked the Manager's registration as an investment
adviser; or has commenced proceedings or an investigation that may result in any
of these actions, (2) upon having a reasonable basis for believing that the
Series has ceased to qualify or might not qualify as a regulated investment
company under Subchapter M of the Internal Revenue Code.
9. Books and Records. In compliance with the requirements
of Rule 31a-3 under the 1940 Act, the Subadviser hereby agrees that all records
which it maintains for the Series are the property of the Trust and further
agrees to surrender promptly to the Trust any of such records upon the Trust's
or the Manager's request, although the Subadviser may, at its own expense, make
and retain a copy of such records. The Subadviser further agrees to preserve for
the periods prescribed by Rule 31a-2 under the 1940 Act the records required to
be maintained by Rule 31a-l under the 1940 Act and to preserve the records
required by Rule 204-2 under the Advisers Act for the period specified in the
Rule.
10. Cooperation. Each party to this Agreement agrees to
cooperate with each other party and with all appropriate governmental
authorities having the requisite jurisdiction (including, but not limited to,
the Commission) in connection with any investigation or inquiry relating to this
Agreement or the Trust.
11. Representations Respecting Subadviser. The Manager and
the Trust agree that neither the Trust, the Manager, nor affiliated persons of
the Trust or the Manager shall give any information or make any representations
or statements in connection with the sale of shares of the Series concerning the
Subadviser or the Series other than the information or representations contained
in the Registration Statement, prospectus, or statement of additional
information for the Trust shares, as they may be amended or supplemented from
time to time, or in reports or proxy statements for the Trust, or in sales
literature or other promotional material approved in advance by the Subadviser,
except with the prior permission of the Subadviser. The parties agree that in
the event that the Manager or an affiliated person of the Manager sends sales
literature or other promotional material to the Subadviser for its approval and
the Subadviser has not commented within three (3) days, the Manager and its
affiliated persons may use and distribute such sales literature or other
promotional material, although, in such event, the Subadviser shall not be
deemed to have approved of the contents of such sales literature or other
promotional material.
12. Control. Notwithstanding any other provision of the
Agreement, it is understood and agreed that the Trust shall at all times retain
the ultimate responsibility for and control of all functions performed pursuant
to this Agreement and reserve the right to direct, approve, or disapprove any
action hereunder taken on its behalf by the Subadviser.
6
13. Liability. Except as may otherwise be required by the
1940 Act or the rules thereunder or other applicable law, the Trust and the
Manager agree that the Subadviser, any affiliated person of the Subadviser, and
each person, if any, who, within the meaning of Section 15 of the 1933 Act
controls the Subadviser shall not be liable for, or subject to any damages,
expenses, or losses in connection with, any act or omission connected with or
arising out of any services rendered under this Agreement, except by reason of
willful misfeasance, bad faith, or gross negligence in the performance of the
Subadviser's duties, or by reason of reckless disregard of the Subadviser's
obligations and duties under this Agreement.
14. Indemnification.
(a) The Manager agrees to indemnify and hold harmless the
Subadviser, any affiliated person of the Subadviser, and each person, if any,
who, within the meaning of Section 15 of the 1933 Act controls ("controlling
person") the Subadviser (all of such persons being referred to as "Subadviser
Indemnified Persons") against any and all losses, claims, damages, liabilities,
or litigation (including legal and other expenses) to which a Subadviser
Indemnified Person may become subject under the 1933 Act, the 1940 Act, the
Advisers Act, the Internal Revenue Code, under any other statute, at common law
or otherwise, arising out of the Manager's responsibilities to the Trust which
(1) may be based upon any misfeasance, malfeasance, or nonfeasance by the
Manager, any of its employees or representatives or any affiliate of or any
person acting on behalf of the Manager or (2) may be based upon any untrue
statement or alleged untrue statement of a material fact supplied by, or which
is the responsibility of, the Manager and contained in the Registration
Statement or prospectus covering shares of the Trust or a Series, or any
amendment thereof or any supplement thereto, or the omission or alleged omission
to state therein a material fact known or which should have been known to the
Manager and was required to be stated therein or necessary to make the
statements therein not misleading, unless such statement or omission was made in
reliance upon information furnished to the Manager or the Trust or to any
affiliated person of the Manager by a Subadviser Indemnified Person; provided,
however, that in no case shall the indemnity in favor of the Subadviser
Indemnified Person be deemed to protect such person against any liability to
which any such person would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of its duties, or
by reason of its reckless disregard of obligations and duties under this
Agreement.
(b) Notwithstanding Section 14 of this Agreement, the
Subadviser agrees to indemnify and hold harmless the Manager, any affiliated
person of the Manager, and each person, if any, who, within the meaning of
Section 15 of the 1933 Act, controls ("controlling person") the Manager (all of
such persons being referred to as "Manager Indemnified Persons") against any and
all losses, claims, damages, liabilities, or litigation (including legal and
other expenses) to which a Manager Indemnified Person may become subject under
the 1933 Act, 1940 Act, the Advisers Act, the Internal Revenue Code, under any
other statute, at common law or otherwise, arising out of the Subadviser's
responsibilities as Subadviser of the Series which (1) may be based upon any
misfeasance, malfeasance, or nonfeasance by the Subadviser, any of its employees
or representatives, or any affiliate of or any person acting on behalf of the
Subadviser, (2) may be based upon a failure to comply with Section 2, Paragraph
(a) of this Agreement, or (3) may be based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
prospectus covering the shares of the Trust or a Series, or any amendment or
supplement thereto, or the omission or alleged omission to state therein a
material fact known or which should have been known to the Subadviser and was
required to be stated therein or necessary to make the statements therein not
misleading, if such a statement or omission was made in reliance upon
information furnished to the Manager, the Trust, or any affiliated person of the
Manager or Trust by the Subadviser or any affiliated person of the Subadviser;
provided, however, that in no case shall the indemnity in favor of a Manager
Indemnified Person be deemed to protect such person against any liability to
which any such person would otherwise be subject by reason
7
of willful misfeasance, bad faith, gross negligence in the performance of its
duties, or by reason of its reckless disregard of its obligations and duties
under this Agreement.
(c) The Manager shall not be liable under Paragraph (a) of
this Section 14 with respect to any claim made against a Subadviser Indemnified
Person unless such Subadviser Indemnified Person shall have notified the Manager
in writing within a reasonable time after the summons, notice, or other first
legal process or notice giving information of the nature of the claim shall have
been served upon such Subadviser Indemnified Person (or after such Subadviser
Indemnified Person shall have received notice of such service on any designated
agent), but failure to notify the Manager of any such claim shall not relieve
the Manager from any liability which it may have to the Subadviser Indemnified
Person against whom such action is brought otherwise than on account of this
Section 14. In case any such action is brought against the Subadviser
Indemnified Person, the Manager will be entitled to participate, at its own
expense, in the defense thereof or, after notice to the Subadviser Indemnified
Person, to assume the defense thereof, with counsel satisfactory to the
Subadviser Indemnified Person. If the Manager assumes the defense of any such
action and the selection of counsel by the Manager to represent both the Manager
and the Subadviser Indemnified Person would result in a conflict of interests
and therefore, would not, in the reasonable judgment of the Subadviser
Indemnified Person, adequately represent the interests of the Subadviser
Indemnified Person, the Manager will, at its own expense, assume the defense
with counsel to the Manager and, also at its own expense, with separate counsel
to the Subadviser Indemnified Person, which counsel shall be satisfactory to the
Manager and to the Subadviser Indemnified Person. The Subadviser Indemnified
Person shall bear the fees and expenses of any additional counsel retained by
it, and the Manager shall not be liable to the Subadviser Indemnified Person
under this Agreement for any legal or other expenses subsequently incurred by
the Subadviser Indemnified Person independently in connection with the defense
thereof other than reasonable costs of investigation. The Manager shall not have
the right to compromise on, or settle the litigation, without the prior written
consent of the Subadviser Indemnified Person if the compromise or settlement
results, or may result, in a finding of wrongdoing on the part of the Subadviser
Indemnified Person.
(d) The Subadviser shall not be liable under Paragraph (b)
of this Section 14 with respect to any claim made against a Manager Indemnified
Person unless such Manager Indemnified Person shall have notified the Subadviser
in writing within a reasonable time after the summons, notice, or other first
legal process or notice giving information of the nature of the claim shall have
been served upon such Manager Indemnified Person (or after such Manager
Indemnified Person shall have received notice of such service on any designated
agent), but failure to notify the Subadviser of any such claim shall not relieve
the Subadviser from any liability which it may have to the Manager Indemnified
Person against whom such action is brought otherwise than on account of this
Section 14. In case any such action is brought against the Manager Indemnified
Person, the Subadviser will be entitled to participate, at its own expense, in
the defense thereof or, after notice to the Manager Indemnified Person, to
assume the defense thereof, with counsel satisfactory to the Manager Indemnified
Person. If the Subadviser assumes the defense of any such action and the
selection of counsel by the Subadviser to represent both the Subadviser and the
Manager Indemnified Person would result in a conflict of interests and
therefore, would not, in the reasonable judgment of the Manager Indemnified
Person, adequately represent the interests of the Manager Indemnified Person,
the Subadviser will, at its own expense, assume the defense with counsel to the
Subadviser and, also at its own expense, with separate counsel to the Manager
Indemnified Person which counsel shall be satisfactory to the Subadviser and to
the Manager Indemnified Person. The Manager Indemnified Person shall bear the
fees and expenses of any additional counsel retained by it, and the Subadviser
shall not be liable to the Manager Indemnified Person under this Agreement for
any legal or other expenses subsequently incurred by the Manager Indemnified
Person independently in connection with the defense thereof other than
reasonable costs of investigation. The Subadviser shall not have the right to
compromise on or settle the litigation without the prior written consent of the
Manager Indemnified Person if the compromise or settlement results, or may
result in a finding of wrongdoing on the part of the Manager Indemnified Person.
8
15. Duration and Termination. This Agreement shall become
effective on the date first indicated above. Unless terminated as provided
herein, 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 annual continuance is specifically approved each
year by (a) the vote of a majority of the entire Board of Trustees of the Trust,
or by the vote of a majority of the outstanding voting securities (as defined in
the 0000 Xxx) of the Series, and (b) the vote of a majority of those Trustees
who are not parties to this Agreement or interested persons (as such term is
defined in the 0000 Xxx) of any such party to this Agreement cast in person at a
meeting called for the purpose of voting on such approval. The Subadviser shall
not provide any services for a Series or receive any fees on account of such
Series with respect to which this Agreement is not approved as described in the
preceding sentence. However, any approval of this Agreement by the holders of a
majority of the outstanding shares (as defined in the 0000 Xxx) of a Series
shall be effective to continue this Agreement with respect to the Series
notwithstanding (i) that this Agreement has not been approved by the holders of
a majority of the outstanding shares of any other Series or (ii) that this
agreement has not been approved by the vote of a majority of the outstanding
shares of the Trust, unless such approval shall be required by any other
applicable law or otherwise. Notwithstanding the foregoing, this Agreement may
be terminated for each or any Series hereunder: (a) by the Manager at any time
without penalty, upon sixty (60) days' written notice to the Subadviser and the
Trust, (b) at any time without payment of any penalty by the Trust, upon the
vote of a majority of the Trust's Board of Trustees or a majority of the
outstanding voting securities of each Series, upon sixty (60) days' written
notice to the Manager and the Subadviser, or (c) by the Subadviser at any time
without penalty, upon sixty (60) days' written notice to the Manager and the
Trust. In the event of termination for any reason, all records of each Series
for which the Agreement is terminated shall promptly be returned to the Manager
or the Trust, free from any claim or retention of rights in such record by the
Subadviser, although the Subadviser may, at its own expense, make and retain a
copy of such records. The Agreement shall automatically terminate in the event
of its assignment (as such term is described in the 1940 Act). In the event this
Agreement is terminated or is not approved in the manner described above, the
sections numbered 2(f), 9, 10, 11, 13, 14, and 17 of this Agreement shall remain
in effect, as well as any applicable provision of this Section 15.
16. Amendments. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought, and no amendment of this Agreement shall be
effective until approved by an affirmative vote of (i) the holders of a majority
of the outstanding voting securities of the Series, and (ii) the Trustees of the
Trust, including a majority of the Trustees of the Trust who are not interested
persons of any party to this Agreement, cast in person at a meeting called for
the purpose of voting on such approval, if such approval is required by
applicable law.
17. Use of Name.
(a) It is understood that the name MainStay or any
derivative thereof or logo associated with that name is the valuable property of
the Manager and/or its affiliates, and that the Subadviser has the right to use
such name (or derivative or logo) only with the approval of the Manager and only
so long as the Manager is Manager to the Trust and/or the Series. Upon
termination of the Management Agreement between the Trust and the Manager, the
Subadviser shall forthwith cease to use such name (or derivative or logo).
(b) It is understood that the name Gabelli Asset Management
Company (GAMCO Investors, Inc.) or any derivative thereof or logo associated
with that name is the valuable property of the Subadviser and its affiliates and
that the Trust and/or the Series have the right to use such name (or
9
derivative or logo) in offering materials of the Trust with the approval of the
Subadviser and for so long as the Subadviser is a Subadviser to the Trust and/or
the Series. Upon termination of this Agreement between the Trust, the Manager,
and the Subadviser, the Trust shall forthwith cease to use such name (or
derivative or logo).
18. Amended and Restated Declaration of Trust. A copy of the
Amended and Restated Declaration of Trust for the Trust is on file with the
Secretary of The Commonwealth of Massachusetts. The Amended and Restated
Declaration of Trust has been executed on behalf of the Trust by the Trustees of
the Trust in their capacity as Trustees of the Trust and not individually. The
obligations of this Agreement shall be binding upon the assets and property of
the Trust and shall not be binding upon any Trustee, officer, or shareholder of
the Trust individually.
19. 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 Subadviser at
Xxx Xxxxxxxxx Xxxxxx, Xxx, Xxx Xxxx 00000.
20. Miscellaneous.
(a) This Agreement shall be governed by the laws of the
State of New York, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Advisers Act or rules or orders of the
Commission thereunder. The term "affiliate" or "affiliated person" as used in
this Agreement shall mean "affiliated person" as defined in Section 2(a)(3) of
the1940 Act.
(b) The captions of this Agreement are included for
convenience only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
(c) To the extent permitted under Section 15 of this
Agreement, this Agreement may only be assigned by any party with the prior
written consent of the other parties.
(d) 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, and to this extent, the provisions of
this Agreement shall be deemed to be severable.
(e) Nothing herein shall be construed as constituting the
Subadviser as an agent of the Manager, or constituting the Manager as an agent
of the Subadviser.
10
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of the day and year first above written.
NEW YORK LIFE INVESTMENT MANAGEMENT LLC
Attest: By:
------------------------------- --------------------------------------
Name: Name:
Title: Title:
GABELLI ASSET MANAGEMENT COMPANY
Attest: By:
------------------------------- --------------------------------------
Name: Name:
Title: Title:
11
SCHEDULE A
SERIES ANNUAL RATE*
Blue Chip Growth Fund .50%
* of Series' average daily net assets
12
