EXHIBIT d(2)(b)
FORM OF AMENDED AND RESTATED SUB-ADVISORY AGREEMENT
MAINSTAY STRATEGIC VALUE FUND
Amended and Restated Sub-Advisory Agreement made as of August 1, 2002
(the "Agreement") between New York Life Investment Management LLC, a Delaware
limited liability company (the "Manager"), on behalf of The MainStay Funds (the
"Trust") and MainStay Strategic Value Fund (the "Fund"), a series of the Trust,
and MacKay ▇▇▇▇▇▇▇ LLC, a Delaware limited liability company (the "Subadviser").
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended ("1940 Act");
and
WHEREAS, MacKay ▇▇▇▇▇▇▇ Financial Corporation ("MSFC"), a Delaware
corporation, entered into a Sub-Advisory Agreement, dated October 27, 1997, by
and between MSFC and MainStay Management Inc. ("MMI") whereby MSFC agreed to
provide advisory and related administrative services to the Fund; and
WHEREAS, the Sub-Advisory Agreement was amended effective October 1,
1999 to reflect the conversion of each of MFSC and MMI from a corporation to a
limited liability company under Delaware law and to replace MFSC with MacKay
▇▇▇▇▇▇▇ LLC, and 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 October 27, 1997, 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 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 services to the
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 desires to retain the Subadviser to furnish certain
investment advisory services with respect to the Fund and the Subadviser is
willing to furnish such services; and
WHEREAS, this Agreement amends and restates, in its entirety, the
Sub-Advisory Agreement, dated October 27, 1997, 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, the parties hereto agree as follows:
1. Appointment. The Manager hereby appoints the Subadviser as an
investment sub-adviser with respect to the 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.
2. Duties as Subadviser. Subject to the supervision of the Trustees
of the Trust and the Manager, the Subadviser shall manage the investment
operations of the Fund and the composition of the portfolio of the Fund,
including the purchase, retention and disposition thereof, in accordance with
the investment objectives, policies and restrictions of the Fund, as stated in
the Prospectus (as hereinafter defined) and subject to the following
understandings:
(a) The Subadviser 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.
(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 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 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 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 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 Fund, the Trust, the Manager nor the Subadviser has adopted a formula
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for allocation of the Fund's investment transaction business. It is also
understood that it is desirable for the 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 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 Subadviser 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 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 the 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 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 Manager and to the Trust's Trustees
such periodic and special reports as the Manager or the Trustees may reasonably
request.
(f) The Subadviser shall provide the Fund's Custodian on
each business day with information relating to the execution of all portfolio
transactions pursuant to standing instructions.
3. Subadviser Personnel. The Subadviser 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 Subadviser under this
Agreement may be furnished through the medium of any of such directors,
officers, or employees.
4. Books and Records. The Subadviser shall keep the Fund's books
and records required to be maintained by it, pursuant to paragraph 2 hereof. The
Subadviser 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 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 2 hereof.
5. 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.
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6. 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) 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 Subadviser 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-lA (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) Prospectus and Statement of Additional Information of
the Fund (such Prospectus and Statement of Additional Information, as currently
in effect and as amended or supplemented from time to time, being herein called
the "Prospectus").
7. 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 Trust, the Fund or the Manager.
8. Compensation. For the services provided and the expenses assumed
by the Subadviser pursuant to this Agreement, the Manager, not the Trust or the
Fund, will pay to the Subadviser a fee, computed daily and payable monthly, at
an annual rate of 0.375% of the Fund's average daily net assets.
9. Standard of Care. The Subadviser 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.
10. Duration and Termination. This Agreement shall continue in
effect for a period of no more than one year 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. Notwithstanding the foregoing, this Agreement may be terminated: (a)
at any time without penalty by the Fund upon the vote of a majority of the
Trustees or by vote of the majority of the Fund's outstanding voting securities,
upon sixty (60) days' written notice to the Subadviser, (b)
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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 the Fund. This Sub-Advisory Agreement will also terminate
automatically in the event of its assignment (as defined in the ▇▇▇▇ ▇▇▇) or the
assignment or termination of the Management Agreement.
11. 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 Trustee, officer, or employee of the Trust 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.
12. 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 amendment of this Agreement shall be effective
until approved (i) by a vote of a majority of those Trustees who are not parties
to this Agreement or interested persons of any such party, and (ii) by a vote of
a majority of the Fund's outstanding voting securities (unless in the case of
(ii), the Trust receives a Commission order or no-action letter permitting it to
modify the Agreement without such vote).
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
14. 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, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇; or (2) to the Subadviser at ▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
15. 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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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.
NEW YORK LIFE INVESTMENT MANAGEMENT LLC
By:
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Name:
Title:
MACKAY ▇▇▇▇▇▇▇ LLC
By:
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Name:
Title:
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