EXHIBIT d(1)(b)
THE MAINSTAY FUNDS
MANAGEMENT AGREEMENT
Agreement, made as of the 27th day of December, 2001 between
THE MAINSTAY FUNDS, a Massachusetts business trust (the "Trust"), on behalf of
its series (the "Fund") as set forth on Schedule A, as amended from time to
time, and New York Life Investment Management LLC, a Delaware limited liability
company (the "Manager").
W I T N E S S E T H:
WHEREAS, the Trust is an open-end management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act");
WHEREAS, the shares of beneficial interest of the Trust (the
"Shares") are divided into separate series, each of which is established
pursuant to a written instrument executed by the Trustees of the Trust and the
Trustees may from time to time terminate such series or establish and terminate
additional series; and
WHEREAS, the Trust desires to retain the Manager to render
investment advisory and related administrative services to the Fund, and the
Manager is willing to render such services on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, the parties agree as follows:
1. Appointment. The Fund hereby appoints New York Life Investment
Management LLC to act as manager to the Fund for the period and on the terms set
forth in this Agreement. The Manager accepts such appointment and agrees to
render the services herein described, for the compensation herein provided.
2. Duties as Manager. Subject to the supervision of the Trustees
of the Trust, the Manager shall administer the Fund's business affairs and
manage the investment operations of the Fund and the composition of the
portfolio of the Fund, including the purchase, retention and disposition of
securities therein, in accordance with the investment objectives, policies and
restrictions of the Fund, as stated in the currently effective Prospectus (as
hereinafter defined) and subject to the following understandings:
(a) The Manager shall (i) furnish the Fund with office
facilities; (ii) be responsible for the financial and accounting records
required to be maintained by the Fund (excluding those being maintained by the
Fund's Custodian, Transfer Agent and Accounting Services Agent except as to
which the Manager has supervisory functions) and other than those being
maintained by the Fund's subadvisor, if any; and (iii) furnish the Fund with
ordinary clerical, bookkeeping and recordkeeping services at such office
facilities.
(b) The Manager shall provide supervision of the Fund's
investments and determine from time to time what investments or securities will
be purchased, retained, sold or lent by the Fund, and what portion of the Fund's
assets will be invested or held uninvested as cash.
(c) The Manager shall use its best judgment in the
performance of its duties under this Agreement.
(d) The Manager, in the performance of its duties and
obligations under this Agreement, shall act in conformity with the Declaration
of Trust, By-Laws and Prospectus (each as hereinafter defined) of the Trust and
with the instructions and directions of the Trustees of the Trust and will
conform to and comply with the requirements of the 1940 Act and all other
applicable federal and state laws and regulations.
(e) The Manager, and any subadvisor to whom such
authority has been delegated, shall determine the securities to be purchased or
sold by the Fund and will place orders pursuant to its determination with or
through such persons, brokers or dealers (including NYLIFE Securities Inc.) in
conformity with the policy with respect to brokerage as set forth in the Trust's
Registration Statement and Prospectus (each as hereinafter defined) or as the
Trustees may direct from time to time. It is recognized that, in providing the
Fund with investment supervision or the placing of orders for portfolio
transactions, the Manager or any subadvisor will give primary consideration to
securing the most favorable price and efficient execution. Consistent with this
policy, the Manager or any subadvisor may consider the financial responsibility,
research and investment information and other services provided by brokers or
dealers who may effect or be a party to any such transaction or other
transactions to which other clients of the Manager or any subadvisor may be a
party. It is understood that neither the Fund, the Trust nor the Manager or any
subadvisor has adopted a formula for allocation of the Fund's investment
transaction business. It is also understood that it is desirable for the Fund
that the Manager or any subadvisor have access to supplemental investment and
market research and security and economic analyses provided by certain brokers
who may execute brokerage transactions at a higher cost to the Fund than may
result when allocating brokerage to other brokers on the basis of seeking the
most favorable price and efficient execution. Therefore, the Manager or any
subadvisor is authorized to place orders for the purchase and sale of securities
for the Fund with such certain brokers, subject to review by the Trust's
Trustees from time to time with respect to the extent and continuation of this
practice. It is understood that the services provided by such brokers may be
useful to the Manager or any subadvisor in connection with its services to other
clients.
On occasions when the Manager or any subadvisor deems the
purchase or sale of a security to be in the best interest of the Fund as well as
other clients, the Manager or any subadvisor, to the extent permitted by
applicable laws and regulations, may, but shall be under no obligation to,
aggregate the securities to be so sold or purchased in order to obtain the most
favorable price or lower brokerage commissions and efficient execution. In such
event, allocation of the securities so purchased or sold, as well as expenses
incurred in the transaction, will be made by the Manager or any subadvisor in
the manner it considers to be the most equitable and consistent with its
fiduciary obligations to the Fund and to such other clients.
(f) The Manager shall maintain all books and records with
respect to the Fund's securities transactions required by sub-paragraphs (b)(5),
(6), (9) and (10) and paragraph (f) of Rule 31a-1 under the 1940 Act and any
other books and records required to be maintained by it under the 1940 Act and
the Rules thereunder and shall render to the Trust's Trustees such periodic and
special reports as the Trustees may reasonably request.
(g) The Manager shall provide the Trust's Custodian on
each business day with information relating to the execution of all portfolio
transactions pursuant to standing instructions.
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(h) With respect to any or all series of the Trust,
including the Fund, the Manager may enter into one or more contracts
("Subadvisory" or "Sub-Administration Contract") with a subadvisor or
sub-administrator in which the Manager delegates to such subadvisor or
sub-administrator any or all its duties specified in this Agreement, provided
that the Subadvisory or Sub-Administration Contract meets all applicable
requirements of the 1940 Act and rules thereunder.
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 Fund's books and
records required to be maintained by it, pursuant to paragraph 2 hereof. The
Manager agrees that all records which it maintains for the Fund are the property
of the Fund, and it will surrender promptly to the Fund any of such records upon
the Fund's request. The Manager further agrees to preserve for the periods
prescribed by Rule 31a-2 as promulgated by the Securities and Exchange
Commission (the "Commission") under the 1940 Act any such records as are
required to be maintained by the Manager pursuant to paragraph 2 hereof.
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 the Fund and the Fund's Shares and all
amendments thereto;
(f) Notification of Registration of the Trust under the
1940 Act on Form N-8A as filed with the Commission and all amendments thereto;
and
(g) The form of Prospectus and Statement of Additional
Information of the Trust (such Prospectus and Statement of Additional
Information, as currently in effect and as amended or supplemented from time to
time, being herein called collectively the "Prospectus").
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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 the Fund and administering
the ordinary course of the Fund's business, other than those assumed by the Fund
herein;
(b) the Fund assumes and will pay its expenses, including
but not limited to those described below (where any such category applies to
more than one series of the Trust, the Fund shall be liable only for its
allocable portion of the expenses):
(i) the fees and expenses of Trustees who are
not interested persons of the Manager or of the Trust;
(ii) the fees and expenses of the Fund's
custodian which relate to (A) the custodial function and the recordkeeping
connected therewith, (B) the maintenance of the required accounting records of
the Fund not being maintained by the Manager, (C) the pricing of the Fund's
Shares, including the cost of any pricing service or services which may be
retained pursuant to the authorization of the Trustees of the Trust, and (D) for
both mail and wire orders, the cashiering function in connection with the
issuance and redemption of the Fund's Shares;
(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 the 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 Fund;
(vi) all taxes and business fees payable by the
Trust or the Fund 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;
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(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 Fund pursuant to
a Plan of Distribution adopted in conformity with Rule 12b-1 under the 1940 Act.
8. Organization Expenses. The Fund hereby agrees to reimburse the
Manager for the organization expenses of, and the expenses incurred in
connection with, the initial offering of Shares of the Fund.
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 annual rate, as set forth opposite the Fund's
name on Schedule A, of the average daily net assets of the Fund.
This fee will be computed daily and will be paid to the
Manager monthly. This fee will be chargeable only to the Fund, and no other
series of the Trust shall be liable for the fee due and payable hereunder. The
Fund shall not be liable for any expense of any other series of the Trust.
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 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.
11. Duration and Termination. This Agreement shall continue in
effect with respect to the Fund for a period of more than two years from the
date hereof only so long as such continuance is specifically approved at least
annually with respect to the Fund in conformity with the requirements of the
1940 Act and the Rules thereunder; provided, however, that this Agreement may be
terminated with respect to the Fund at any time, without the payment of any
penalty, by the Trustees of the Trust or by vote of a majority of the
outstanding voting securities (as defined in the ▇▇▇▇ ▇▇▇) of the Fund, or by
the Manager at any time, without the payment of any penalty, on not more than 60
days' nor less than 30 days' written notice to the other party. This Agreement
shall terminate automatically in the event of its assignment (as defined in the
1940 Act).
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 the Fund or the Trust in any way or otherwise
be deemed an agent of the Fund or the Trust.
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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 the Fund or to the public, which refer to
the Manager in any way, prior to use thereof and, not to use such material if
the Manager reasonably objects in writing within five business days (or such
other time as may be mutually agreed) after receipt thereof. In the event of
termination of this Agreement, the Trust will continue to furnish to the Manager
copies of any of the above-mentioned materials which refer in any way to the
Manager. The Trust shall furnish or otherwise make available to the Manager such
other information relating to the business affairs of the Fund as the Manager at
any time, or from time to time, reasonably requests in order to discharge its
obligations hereunder.
15. Amendment. This Agreement may be amended in writing by mutual
consent, but the consent of the Fund, if required, must be obtained in
conformity with the requirements of the 1940 Act and the Rules thereunder.
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, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇; or (2) to the Trust at ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
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. The Fund may use any name including the word
"MainStay" only for so long as this Agreement or any other agreement between the
Manager or any other affiliate of New York Life Insurance Company and the Trust
or any extension, renewal or amendment thereof remains in effect, including any
similar agreement with any organization which shall have succeeded to the
Manager's business as investment adviser. At such time as such an agreement
shall no longer be in effect, the Fund will (to the extent that it lawfully can)
cease to use such name or any other name indicting that it is advised by or
otherwise connected with the Manager or any organization which shall have so
succeeded to its business.
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
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incorporate the effect of such rule, regulation or order. This Agreement may be
signed in counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day and
year first above written.
THE MAINSTAY FUNDS, on behalf of
the series listed on Schedule A
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Treasurer and
Chief Financial and Accounting Officer
NEW YORK LIFE INVESTMENT
MANAGEMENT LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Operating Officer
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SCHEDULE A
FUND ANNUAL RATE*
U.S. Large Cap Equity Fund 0.65%
* of the Fund's average daily net assets