FOREIGN CUSTODY MANAGER AGREEMENT
Exhibit j.2
AGREEMENT made as of June 15, 2007 between the Calamos closed-end funds listed on Schedule II
hereto, as such Schedule may be amended from time to time to add additional funds managed by
Calamos Advisors LLC (each such existing fund, and any additional fund, the “Fund”), each a
business trust organized and existing under the laws of the State of Delaware having its principal
office and place of business at c/o Calamos Advisors LLC, 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx,
00000-0000, and The Bank of New York, a New York corporation authorized to do a banking business
having its principal office and place of business at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(“BNY”).
W I T N E S S E T H:
WHEREAS, the Fund desires to appoint BNY as a Foreign Custody Manager on the terms and
conditions contained herein;
WHEREAS, BNY desires to serve as a Foreign Custody Manager and perform the duties set forth
herein on the terms and conditions contained herein;
NOW THEREFORE, in consideration of the mutual promises hereinafter contained in this
Agreement, the Fund and BNY hereby agree as follows:
ARTICLE I.
DEFINITIONS
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
1. “Board” shall mean the board of directors or board of trustees, as the case may be, of the
Fund.
2. “Eligible Foreign Custodian” shall have the meaning provided in the Rule.
3. “Monitoring System” shall mean a system established by BNY to fulfill the Responsibilities
specified in clauses (d) and (e) of Section 1 of Article III of this Agreement.
4. “Responsibilities” shall mean the responsibilities delegated to BNY under the Rule as a
Foreign Custody Manager with respect to each Specified Country and each Eligible Foreign Custodian
selected by BNY, as such responsibilities are more fully described in Article III of this
Agreement.
5. “Rule” shall mean Rule 17f-5 under the Investment Company Act of 1940, as amended on June
12, 2000.
6. “Specified Country” shall mean each country listed on Schedule I attached hereto and each
country, other than the United States, constituting the primary market for a security with respect
to which the Fund has given settlement instructions to The Bank of New York as custodian (the
“Custodian”) under its Custody Agreement with the Fund.
ARTICLE II.
BNY AS A FOREIGN CUSTODY MANAGER
BNY AS A FOREIGN CUSTODY MANAGER
1. The Fund on behalf of its Board hereby delegates to BNY with respect to each Specified
Country the Responsibilities.
2. BNY accepts the Board’s delegation of Responsibilities with respect to each Specified
Country and agrees in performing the Responsibilities as a Foreign Custody Manager to exercise
reasonable care, prudence and diligence such as a person having responsibility for the safekeeping
of the Fund’s assets would exercise.
3. BNY shall provide to the Board at such times as the Board deems reasonable and appropriate
based on the circumstances of the Fund’s foreign custody arrangements written reports notifying the
Board of the placement of assets of the Fund with a particular Eligible Foreign Custodian within a
Specified Country and of any material change in the arrangements (including the contract governing
such arrangements) with respect to assets of the Fund with any such Eligible Foreign Custodian.
ARTICLE III.
RESPONSIBILITIES
RESPONSIBILITIES
1. Subject to the provisions of this Agreement, BNY shall with respect to each Specified
Country select an Eligible Foreign Custodian. In connection therewith, BNY shall: (a) determine
that assets of the Fund held by such Eligible Foreign Custodian will be subject to reasonable care,
based on the standards applicable to custodians in the relevant market in which such Eligible
Foreign Custodian operates, after considering all factors relevant to the safekeeping of such
assets, including, without limitation, those contained in paragraph (c)(1) of the Rule; (b)
determine that the Fund’s foreign custody arrangements with each Eligible Foreign Custodian are
governed by a written contract with the Custodian which will provide reasonable care for the Fund’s
assets based on the standards specified in paragraph (c)(1) of the Rule; (c) determine that each
contract with an Eligible Foreign Custodian shall include the provisions specified in paragraph
(c)(2)(i)(A) through (F) of the Rule or, alternatively, in lieu of any or all of such (c)(2)(i)(A)
through (F) provisions, such other provisions as BNY determines will provide, in their entirety,
the same or a greater level of care and protection for the assets of the Fund as such specified
provisions; (d) monitor pursuant to the Monitoring System the appropriateness of maintaining the
assets of the Fund with a particular Eligible Foreign Custodian pursuant to paragraph (c)(1) of the
Rule and the performance of the contract governing such arrangement; and (e) advise the Fund
whenever BNY determines under the Monitoring System that an arrangement (including, any material
change in the contract governing such arrangement) described in preceding clause (d) no longer
meets the requirements of the Rule.
2. For purposes of preceding Section 1 of this Article, BNY’s determination of appropriateness
shall not include, nor be deemed to include, any evaluation of Country Risks associated with
investment in a particular country. For purposes hereof, “Country Risks” shall mean systemic risks
of holding assets in a particular country including but not limited to (a) an Eligible Foreign
Custodian’s use of any depositories that act as or operate a system or a transnational system for
the central handling of securities or any equivalent book-entries; (b) such country’s financial
infrastructure; (c) such country’s prevailing custody and settlement practices; (d)
nationalization, expropriation or other governmental actions; (e) regulation of the banking or
securities industry; (f) currency controls, restrictions, devaluations or fluctuations; and (g)
market conditions which affect the orderly execution of securities transactions or affect the value
of securities.
ARTICLE IV.
REPRESENTATIONS
REPRESENTATIONS
1. The Fund hereby represents that: (a) this Agreement has been duly authorized, executed and
delivered by the Fund, constitutes a valid and legally binding obligation of the Fund enforceable
in accordance with its terms, and no statute, regulation, rule, order, judgment or contract binding
on the Fund prohibits the Fund’s execution or performance of this Agreement; (b) this Agreement has
been approved and ratified by the Board at a meeting duly called and at which a quorum was at all
times present, and (c) the Board or the Fund’s investment advisor has considered the Country Risks
associated with investment in each Specified Country and will have considered such risks prior to
any settlement instructions being given to the Custodian with respect to any other country.
2. BNY hereby represents that: (a) BNY is duly organized and existing under the laws of the
State of New York, with full power to carry on its businesses as now conducted, and to enter into
this Agreement and to perform its obligations hereunder; (b) this Agreement has been duly
authorized, executed and delivered by BNY, constitutes a valid and legally binding obligation of
BNY enforceable in accordance with its terms, and no statute, regulation, rule, order, judgment or
contract binding on BNY prohibits BNY’s execution or performance of this Agreement; and (c) BNY has
established the Monitoring System.
ARTICLE V.
CONCERNING BNY
CONCERNING BNY
1. BNY shall not be liable for any costs, expenses, damages, liabilities or claims, including
attorneys’ and accountants’ fees, sustained or incurred by, or asserted against, the Fund except to
the extent the same arises out of the failure of BNY to exercise the care, prudence and diligence
required by Section 2 of Article II hereof. In no event shall BNY be liable to the Fund, the
Board, or any third party for special, indirect or consequential damages, or for lost profits or
loss of business, arising in connection with this Agreement.
2. The Fund shall indemnify BNY and hold it harmless from and against any and all costs,
expenses, damages, liabilities or claims, including attorneys’ and accountants’ fees, sustained or incurred by, or asserted against, BNY by reason or as a result of any action
or
inaction, or arising out of BNY’s performance hereunder, provided that the Fund shall not indemnify
BNY to the extent any such costs, expenses, damages, liabilities or claims arises out of BNY’s
failure to exercise the reasonable care, prudence and diligence required by Section 2 of Article II
hereof.
3. For its services hereunder, the Fund agrees to pay to BNY such compensation and
out-of-pocket expenses as shall be mutually agreed.
4. BNY shall have only such duties as are expressly set forth herein. In no event shall BNY
be liable for any Country Risks associated with investments in a particular country.
ARTICLE VI.
MISCELLANEOUS
MISCELLANEOUS
1. This Agreement constitutes the entire agreement between the Fund and BNY as a foreign
custody manager, and no provision in the Custody Agreement between the Fund and the Custodian shall
affect the duties and obligations of BNY hereunder, nor shall any provision in this Agreement
affect the duties or obligations of the Custodian under the Custody Agreement.
2. Any notice or other instrument in writing, authorized or required by this Agreement to be
given to BNY, shall be sufficiently given if received by it at its offices at 0 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as BNY may from time to time designate in
writing.
3. Any notice or other instrument in writing, authorized or required by this Agreement to be
given to the Fund shall be sufficiently given if received by it at its offices at c/o Calamos Asset
Management, Inc., 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000-0000, Attention: Xxxxx X. Xxxxxx,
Xx., Secretary, or at such other place as the Fund may from time to time designate in writing.
4. In case any provision in or obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected thereby. This Agreement may not be amended or modified
in any manner except by a written agreement executed by both parties. This Agreement shall extend
to and shall be binding upon the parties hereto, and their respective successors and assigns;
provided however, that this Agreement shall not be assignable by either party without the written
consent of the other.
5. This Agreement shall be construed in accordance with the substantive laws of the State of
New York, without regard to conflicts of laws principles thereof. The Fund and BNY hereby consent
to the jurisdiction of a state or federal court situated in New York City, New York in connection
with any dispute arising hereunder. The Fund hereby irrevocably waives, to the fullest extent
permitted by applicable law, any objection which it may now or hereafter have to the laying of
venue of any such proceeding brought in such a court and any claim that such proceeding brought in
such a court has been brought in an inconvenient forum. The Fund and BNY each hereby irrevocably waives any and all rights to trial by jury in any legal proceeding
arising out of or relating to this Agreement.
6. The parties hereto agree that in performing hereunder, BNY is acting solely on behalf of
the Fund and no contractual or service relationship shall be deemed to be established hereby
between BNY and any other person by reason of this Agreement.
7. This Agreement may be executed in any number of counterparts, each of which shall be deemed
to be an original, but such counterparts shall, together, constitute only one instrument.
8. This Agreement shall terminate simultaneously with the termination of the Custody Agreement
between the Fund and the Custodian, and may otherwise be terminated by either party giving to the
other party a notice in writing specifying the date of such termination, which shall be not less
than thirty (30) days after the date of such notice.
IN WITNESS WHEREOF, the Fund and BNY have caused this Agreement to be executed by their
respective officers, thereunto duly authorized, as of the date first above written.
EACH FUND, as identified on Schedule II as such may be amended from time to time | ||||||
By: | CALAMOS ADVISORS LLC, as investment manager of such Fund | |||||
By: | ||||||
Name: | Xxxxx X. Xxxxxx, Xx. | |||||
Title: Executive Vice President, General Counsel and | ||||||
Secretary and Secretary of each Fund, as identified | ||||||
on Schedule II as such may be amended from time to time | ||||||
THE BANK OF NEW YORK | ||||||
By: | ||||||
Title: |
SCHEDULE II
LIST OF INVESTMETN COMPANIES
CALAMOS CONVERTIBLE OPPORTUNITIES AND INCOME FUND
CALAMOS CONVERTIBLE AND HIGH INCOME FUND
CALAMOS STRATEGIC TOTAL RETURN FUND
CALAMOS GLOBAL TOTAL RETURN FUND
CALAMOS GLOBAL DYNAMIC INCOME FUND
CALAMOS CONVERTIBLE AND HIGH INCOME FUND
CALAMOS STRATEGIC TOTAL RETURN FUND
CALAMOS GLOBAL TOTAL RETURN FUND
CALAMOS GLOBAL DYNAMIC INCOME FUND