EXHIBIT 23(D)(I)(2)(D)
AMENDED AND RESTATED SUBADVISORY AGREEMENT
Amended and Restated Agreement made as of December 7, 2007, (the
"Agreement") between New York Life Investment Management LLC, a Delaware limited
liability company (the "Manager"), and MacKay Xxxxxxx LLC, a Delaware limited
liability company (the "Subadviser").
WHEREAS, Eclipse Funds Inc. (the "Company") is an open-end management
investment company registered under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Manager has entered into Management Agreements, dated June
18, 2007, as amended, and November 21, 1997, as amended (the "Management
Agreements") with the Company, on behalf of certain of its series (each a "Fund"
and together, the "Funds"), each a series of the Company, set forth in Schedule
A to this Agreement; and
WHEREAS, under the Management Agreements, the Manager has agreed to
provide all aspects of investment advisory and related administrative services
to each Fund; and
WHEREAS, the Management Agreements permit the Manager to delegate
certain of its investment advisory duties under the Management Agreements to a
subadviser; and
WHEREAS, the Manager desires to retain the Subadviser to furnish
certain investment advisory services with respect to each Fund and the
Subadviser is willing to furnish such services; and
WHEREAS, the Manager and the Subadviser have entered into a Subadvisory
Agreement dated November 21, 1997, as amended, and January 2, 2001, as amended,
relating to the performance of services for various series of the Company and
wish to amend and restate their agreements.
NOW, THEREFORE, the parties agree as follows:
I. Appointment. The Manager hereby appoints the Subadviser as an
investment subadviser with respect to each Fund for the period and on
the terms set forth in this Agreement. The Subadviser accepts that
appointment and agrees to render the services herein set forth, for the
compensation herein provided.
II. Duties as Subadviser. Subject to the supervision of the Board of
Directors of the
Company and the Manager, the Subadviser shall manage the investment
operations of each Fund and the composition of the portfolio of each
Fund, including the purchase, retention and disposition thereof, in
accordance with the investment objectives, policies and restrictions of
each Fund, as specified in the currently effective Prospectus (as
hereinafter defined) and subject to the following understandings:
A. The Subadviser 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
each Fund, and what portion of each Fund's assets will be
invested or held uninvested as cash.
B. The Subadviser shall use its best judgment in the performance
of its duties under this Agreement.
C. The Subadviser, in the performance of its duties and
obligations under this Agreement, shall act in conformity with
the Articles of Incorporation, By-Laws and Prospectus (each as
hereinafter defined) of the Company and with the instructions
and directions of the Board of Directors and the Manager and
will conform to and comply with the requirements of the 1940
Act and all other applicable federal and state laws and
regulations.
D. The Subadviser 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 LLC) in conformity with the
policy with respect to brokerage as set forth in the Company's
Registration Statement and Prospectus (each as hereinafter
defined) or as the Board of Directors 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 Subadviser will give primary consideration
to securing the most favorable price and efficient execution.
Consistent with this policy, the Subadviser 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 Subadviser may be a
party. It is understood that none of the Funds, the Company,
the Manager nor the Subadviser has adopted a formula for
allocation of the Funds' investment transaction business. It
is also understood that it is desirable for each Fund that the
Subadviser 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
Subadviser is authorized to place orders for the purchase and
sale of securities for each Fund with such certain brokers,
subject to review by the Company's Board
of Directors 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
Subadviser in connection with its services to other clients.
On occasions when the Subadviser deems the purchase or sale of
a security to be in the best interest of a Fund as well as
other clients, the Subadviser, 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 Subadviser in the manner it considers to be the
most equitable and consistent with its fiduciary obligations
to the Fund and to such other clients.
E. The Subadviser 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 Manager and to the
Company's Directors such periodic and special reports as the
Manager or the Directors may reasonably request.
F. The Subadviser shall provide each Fund's Custodian on each
business day with information relating to the execution of all
portfolio transactions pursuant to standing instructions.
III. Subadviser Personnel. The Subadviser shall authorize and permit any of
its directors, officers and employees who may be elected or appointed
as Directors or officers of the Company to serve in the capacities in
which they are elected or appointed. Services to be furnished by the
Subadviser under this Agreement may be furnished through the medium of
any of such directors, officers, or employees.
IV. Books and Records. The Subadviser shall keep each Fund's books and
records required to be maintained by it, pursuant to paragraph II
hereof. The Subadviser agrees that all records which it maintains for a
Fund are the property of that Fund, and it will surrender promptly to
that Fund any of such records upon the Fund's request. The Subadviser
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 Subadviser pursuant to paragraph II hereof.
V. Services Not Exclusive. The services furnished by the Subadviser
hereunder are not to be deemed exclusive and the Subadviser shall be
free to furnish similar or different services to others so long as its
services under this Agreement are not impaired thereby.
VI. Documents. The Manager has delivered to the Subadviser copies of each
of the following documents and will deliver to it all future amendments
and supplements, if any:
A. Articles of Incorporation of the Company, filed with
the Maryland Department of Assessments and Taxation
(such Articles of Incorporation, as in effect on the
date hereof and as amended from time to time are
herein called the "Articles of Incorporation");
B. By-Laws of the Company (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 Board of Directors of
the Company authorizing the appointment of the
Subadviser and approving the form of this Agreement;
D. Registration Statement under the 1940 Act and the
Securities Act of 1933, as amended, on Form N-lA (the
"Registration Statement"), as filed with the
Commission relating to each Fund and each Fund's
Shares and all amendments thereto;
E. Notification of Registration of the Company under the
1940 Act on Form N-8A as filed with the Commission
and all amendments thereto; and
F. Each form of Prospectus and Statement of Additional
Information of the Company or Fund (such Prospectuses
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. During the term of this Agreement, the Subadviser will bear
all expenses incurred by it in connection with its services under this
Agreement. The Subadviser shall not be responsible for any expenses
incurred by the Company, any Fund or the Manager.
VIII. Compensation. For the services provided and the expenses assumed by the
Sub-Adviser pursuant to this Agreement, the Manager, not the Company
or any Fund, will pay to the Subadviser a fee, computed daily and
payable monthly, at an annual rate of the percentage of each Fund's
average daily net assets, as set forth in Schedule A of this Agreement.
IX. Standard of Care. Subject to applicable law, the Subadviser 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.
X. Duration and Termination. This Agreement shall continue in effect 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
each Fund in conformity with the requirements of the 1940 Act and the
Rules thereunder. Notwithstanding the foregoing, this Agreement may be
terminated: (a) with respect to any Fund at any time without penalty
upon the vote of a majority of the Company's Directors or by vote of
the majority of the Fund's outstanding voting securities, upon sixty
(60) days' written notice to the Subadviser, (b) by the Manager at any
time without penalty upon sixty (60) days' written notice to the
Subadviser or immediately upon material breach by the Subadviser or
immediately if, in the reasonable judgment of the Manager, the
Subadviser becomes unable to discharge its duties and obligations under
this Agreement, or (c) by the Subadviser at any time without penalty,
upon sixty (60) days' written notice to each applicable Fund. This
Agreement will also terminate automatically in the event of its
assignment (as defined in the 0000 Xxx) or the assignment or
termination of the Management Agreements.
XI. Other Business. Nothing in this Agreement shall limit or restrict the
right of any of the Subadviser's directors, officers, or employees who
may also be a Director, officer, or employee of the Company to engage
in any other business or to devote his or her 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 Subadviser's
right to engage in any other business or to render services of any kind
to any other corporation, trust, firm, individual or association.
XII. Amendment. 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. No material amendment of this
Agreement shall be effective until approved (i) by a vote of a majority
of those Directors of the Company who are not parties to this Agreement
or interested persons of any such party, and (ii) by a vote of a
majority of the relevant Fund's outstanding voting securities (unless
in the case of (ii), the Company receives an SEC order or no-action
letter permitting it to modify the Agreement without such vote).
XIII. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
XIV. 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, attn: Secretary
at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000; or (2) to the
Subadviser at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000.
XV. Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to its subject matter and supersedes all prior
oral and written agreements in regard thereto.
XVI. 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, the
terms "majority of the outstanding voting securities," "affiliated
person," "interested person," "assignment," "broker," "investment
adviser," "net assets," "sale," "sell" and "security" 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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MACKAY XXXXXXX LLC
/s/ Xxxxxxx Xxxxxx
-------------------------------------
By: Xxxxxxx Xxxxxx
Title: Chief Operating Officer
NEW YORK LIFE INVESTMENT MANAGEMENT LLC
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
By: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
SCHEDULE A
(AS OF DECEMBER 7, 2007)
FUND NAME FEE
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130/30 High Yield Fund* 0.40%
All Cap Growth Fund 0.25%
Intermediate Term Bond Fund 0.20%
Short Term Bond Fund 0.15%
* NYLIM has agreed to waive a portion of the Fund's management fee or reimburse
the expenses of the appropriate class of the Fund so that the class' total
ordinary operating expenses do not exceed certain amounts. Additionally, NYLIM
has agreed to waive a portion of its management fee. To the extent NYLIM has
agreed to waive its management fee or reimburse expenses, MacKay Xxxxxxx, as
Subadviser for the Fund, has voluntarily agreed to waive or reimburse its fee
proportionately.
