Exhibit K2
MASTER SERVICES AGREEMENT
This AGREEMENT is made as of March 15, 2004 by and among each registered
management investment company identified on Appendix A hereto (each such
management investment company and each management investment company made
subject to this Agreement in accordance with Section 8.5 below shall hereinafter
be referred to as a "FUND" and are sometimes collectively hereinafter referred
to as the "FUNDS"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts
trust company, having its principal place of business at 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (the "AGENT").
WHEREAS, each Fund desires to retain the Agent to perform certain services;
WHEREAS, each Fund may or may not be authorized to issue common stock or
shares of beneficial interest ("SHARES") in separate series, with each such
series representing interests in a separate portfolio of securities and other
assets;
WHEREAS, each Fund so authorized intends that this Agreement be applicable
to its series of Shares (as identified on Appendix A hereto (such series
together with all other series subsequently established by such Fund and made
subject to this Agreement in accordance with Section 8.6 below, shall
hereinafter be referred to as the "PORTFOLIO(S)");
WHEREAS, each Fund not so authorized intends that this Agreement be
applicable to it and that all references hereinafter to one or more
"Portfolio(s)" shall be deemed to refer to such Fund(s); and
WHEREAS, the Agent is willing to perform such services upon the terms and
conditions hereinafter set forth.
Now, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
SECTION 1. DUTIES OF THE AGENT.
SECTION 1.1 BOOKS OF ACCOUNT.
The Agent shall maintain the books of account of each Fund and shall
perform the following duties in the manner prescribed by such Fund's currently
effective prospectus, statement of additional information or other governing
document, certified copies of which have been supplied to the Agent (a
"GOVERNING DOCUMENT"):
a. Maintain each Portfolio's general ledger and such other accounts,
books and financial records of such Portfolio as the parties may agree
upon from time to time, and as may be required by the Investment
Company Act of 1940, as amended (the "1940 ACT");
b. Maintain each Portfolio's portfolio security transaction records
utilizing trade date provided to the Agent by such Portfolio's duly
authorized investment adviser (each, an "INVESTMENT ADVISER");
c. For each valuation date, post each Portfolio's transactions to such
Portfolio's general ledger including, but not limited to:
- Calculate unrealized appreciation and depreciation regarding
portfolio securities;
- Amortize premiums and discounts regarding portfolio securities,
as applicable;
- Calculate fee-based expenses and set-up expense accruals as
directed by the applicable Fund;
- Record payments of Portfolio expenses upon written instructions
of a Fund or duly authorized agent thereof;
- Calculate interest and dividend income and reset interest accrual
for variable rate securities, as applicable
d. Reconcile cash, foreign currency and portfolio security holding
positions with each Portfolio's custodian (each, a "CUSTODIAN") daily,
e. Post each Portfolio's corporate actions;
f. Calculate the net asset value of each Portfolio and report same to the
Fund or such other entities or persons as the Fund may instruct from
time to time;
g. Prepare and transmit to the Fund, or such other entities or persons as
the Fund may instruct from time to time, such periodic reports of Fund
data as may be mutually agreed upon by the parties hereto; and
h. Post shareholder reinvestment activity and reconcile share balances
with each Portfolio's transfer agent (each, a "TRANSFER AGENT") in
conjunction with Portfolio distributions.
Each Fund shall provide timely prior notice to the Agent of any
modification in the manner in which such calculations are to be performed as
prescribed in any revision to such Fund's governing document and shall supply
the Agent with certified copies of all amendments and/or supplements to the
governing documents in a timely manner. For purposes of calculating the net
asset value of a Fund, the Agent shall value each Fund's portfolio securities
utilizing prices obtained from sources designated by such Fund (collectively,
the "AUTHORIZED PRICE SOURCES") on a Price Source Authorization substantially in
the form attached hereto as Exhibit A, as the same may be amended from time to
time, or otherwise designated by means of Proper Instructions (as such term is
defined in Section 2.2 below) (the "PRICE SOURCE AUTHORIZATION"). The Agent
shall not be responsible for any revisions to the methods of calculation unless
and until such revisions are communicated in writing to the Agent.
2.
SECTION 1.2 ADDITIONAL SERVICES.
The Agent shall provide the following services, as applicable, in each
case, subject to the control, supervision and direction of each Fund and subject
to any necessary review and comments by the Fund's auditors and legal counsel
and in accordance with procedures or policies that maybe established from time
to time by and between the Agent and the Fund:
a. Prepare and distribute daily total return calculations;
b. Prepare monthly distribution analysis;
c. Complete monthly preferred shares "asset coverage" test (as that term
is defined in Section 18(h) of the 1940 Act following agreed-upon
compliance procedures (the "COMPLIANCE PROCEDURES"); and
d. Complete monthly (or more frequently as reasonably requested by the
applicable rating agency) preferred shares basic maintenance test for
applicable rating agency(ies) and preferred rate auction following the
Compliance Procedures.
SECTION 1.3 RECORDS.
The Agent shall create and maintain all records relating to its activities
and obligations under this Agreement in such a manner as will meet the
obligations of each Fund under the 1940 Act, specifically Section 31 thereof and
Rules 31a-l and 31a-2 thereunder. All such records shall be the property of the
applicable Fund and shall at all times during the regular business hours of the
Agent be open for inspection by duly authorized officers, employees or agents of
the applicable Fund and employees and agents of the Securities and Exchange
Commission. Subject to Section 3 below, the Agent shall preserve for the period
required by law the records required to be maintained thereunder.
SECTION 1.4 APPOINTMENT OF AGENTS.
The Agent may at its own expense employ agents in the performance of its
duties and the exercise of its rights under this Agreement, provided that the
employment of such agents shall not reduce the Agent's obligations or
liabilities hereunder.
SECTION 2. DUTIES OF EACH FUND.
SECTION 2.1 DELIVERY OF INFORMATION.
Each Fund shall provide, or shall cause a third party to provide, timely
notice to the Agent of certain data as a condition to the Agent's performance
described in Section 1 above. The data required to be provided pursuant to this
section is set forth on Schedule A hereto, which schedule may be separately
amended or supplemented by the parties from time to time.
3.
The Agent is authorized and instructed to rely upon the information it
receives from the Fund or any third party. The Agent shall have no
responsibility to review, confirm or otherwise assume any duty with respect to
the accuracy or completeness of any data supplied to it by or on behalf of any
Fund.
SECTION 2.2 PROPER INSTRUCTIONS.
The Fund or any other person duly authorized by the Fund shall communicate
to the Agent by means of Proper Instructions. Proper Instructions shall mean (i)
a writing signed or initialed by one or more persons as the Board of Directors
or Board of Trustees of a Fund shall have from time to time authorized or (ii)
communication effected directly between a Fund or its third-party agents (each,
a "THIRD PARTY AGENT") and the Agent by electro-mechanical or electronic
devices, provided that such Fund and the Agent agree to security procedures. The
Agent may rely upon any Proper Instruction believed by it to be genuine and to
have been properly issued by or on behalf of the applicable Fund. Oral
instructions shall be considered Proper Instructions if the Agent reasonably
believes them to have been given by a person authorized to give such
instructions. The Fund shall cause all oral instructions to be confirmed in
accordance with clauses (i) or (ii) above, as appropriate. The Fund shall give
timely Proper Instructions to the Agent in regard to matters affecting
accounting practices and the Agent's performance pursuant to this Agreement.
SECTION 3. STANDARD OF CARE: LIMITATION OF LIABILITY: EXCLUSIVE REMEDY.
The Agent shall be held to the exercise of reasonable care in carrying out
the provisions of this Agreement, but shall be kept indemnified by the Funds,
and shall be without liability for any action taken or omitted by it (including,
without limitation, acting in accordance with any Proper Instruction) in good
faith without willful misconduct or negligence. The Agent shall be entitled to
rely on and may act upon the advice of counsel (who may be counsel for the Fund)
or the independent accountants for the Fund on all matters, and shall be without
liability for any action reasonably taken or omitted pursuant to such advice.
Nothing in this paragraph shall be construed as imposing upon the Agent any
obligation to seek such instructions or advice, or to act in accordance with
such advice when received. Without in any way limiting the generality of the
foregoing, the Agent shall in no event be liable for any loss or damage arising
from causes beyond its control including, without limitation, delay or cessation
of services hereunder or any damages resulting therefrom as a result of work
stoppage, power or other mechanical failure, natural disaster, governmental
action, communication disruption or other impossibility of performance.
The Agent shall in no event be liable for any special, indirect,
incidental, or consequential damages of any kind whatsoever (including, without
limitation, attorney's fees) in any way due to a Fund's use of the
administration or accounting services or the performance of or failure to
perform the Agent's obligations under this Agreement.
4.
Each Fund, any Third Party Agent or Authorized Price Sources from which the
Agent shall receive or obtain certain records, reports and other data utilized
or included in the services provided hereunder are solely responsible for the
contents of such information including, without limitation, the accuracy thereof
and each Fund agrees to make no claim against the Agent arising out of the
contents of such third-party data including, but not limited to, the accuracy
thereof. The Agent shall have no responsibility to review, confirm or otherwise
assume any duty with respect to the accuracy or completeness of any such
information and shall be without liability for any loss or damage suffered as a
result of the Agent's reasonable reliance on and utilization of such
information, except as otherwise required by the Price Source Authorization with
respect to the use of data obtained from Authorized Price Sources. The Agent
shall have no responsibility and shall be without liability for any loss or
damage caused by the failure of any Fund or any Third Party Agent to provide it
with the information required by Section 2.1 above. Further, and without in any
way limiting the generality of the foregoing, the Agent shall have no liability
in respect of any loss, damage or expense suffered by the Fund or any third
party, insofar as such loss, damage or expense arises from the performance of
the Agent's duties hereunder by reason of the Agent's reliance upon records that
were maintained for any Fund by any entity other than the Agent prior to such
Fund's appointment of the Agent pursuant to this Agreement.
Each Fund agrees to indemnify and hold the Agent free and harmless from any
expense, loss, damage or claim, including reasonable attorney's fees, suffered
by the Agent and caused by or resulting from the acts or omissions of such Fund
or any third-party whose services the Agent must rely upon in performing
services hereunder.
Each Fund acknowledges and agrees that, with respect to investments it
maintains with an entity which may from time to time act as a transfer agent for
uncertificated shares of registered investment companies (the "UNDERLYING
TRANSFER AGENT), such Underlying Transfer Agent is the sole source of
information on the number of shares held by it on behalf of a Fund and that the
Agent has the right to rely on holdings information furnished by the Underlying
Transfer Agent to the Agent in performing its duties under this Agreement.
SECTION 3A. PERFORMANCE GOALS.
The Funds and the Agent may from time to time agree on the manner in which
they expect to deliver and receive the services contemplated by this Agreement.
The parties agree that such agreement(s) (hereinafter referred to as "SERVICE
LEVEL DOCUMENTS)") reflect performance goals and any failure to perform in
accordance with the provisions thereof shall not be considered a breach of
contract that gives rise to contractual or other remedies. It is the intention
of the parties that the sole remedy for failure to perform in accordance with
the provisions of a Service Level Document, or any dispute relating to
performance goals set forth in a Service Level Document, will be a meeting of
the parties to resolve the failure pursuant to the consultation procedure
described in Sections 3A.1 and 3A.2 below.
SECTION 3A.1. CONSULTATION PROCEDURE. If a party hereto is consistently
unable to meet the provisions of a Service Level Document, or in the event that
a dispute arises relating to
5.
performance goals set forth in a Service Level Document, either party to this
Agreement shall address any concerns it may have by requiring a consultation
with the other party.
SECTION 3A.2 PURPOSE OF CONSULTATION PROCEDURE. The purpose of the
consultation procedure is to endeavor to resolve a consistent failure to meet
the provisions of a Service Level Document. If a consultation occurs under this
Section 3A, all parties must negotiate in good faith to endeavor to:
(a) implement changes which will enable the Service Level Document
provisions to be more regularly met;
(b) agree to alternative Service Level Document provisions which meet the
parties' respective business requirements; or
(c) otherwise find a solution such that within 30 days after the
consultation, the inability to meet the Service Level Document
provisions may be less likely to occur in the future.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
SECTION 4.1 REPRESENTATIONS AND WARRANTIES OP THE AGENT.
The Agent represents and warrants to each Fund that:
a. It is a Massachusetts trust company, duly organized and existing under
the laws of The Commonwealth of Massachusetts; and
b. The person executing this Agreement on its behalf has been duly
authorized to act on its behalf.
SECTION 4.2 REPRESENTATIONS AND WARRANTIES OF EACH FUND.
Each Fund represents and warrants to the Agent that:
a. It is duly organized, existing and in good standing under the laws of
the jurisdiction in which it was formed;
b. It has the power and authority under applicable laws and by its
organizational documents to enter into and perform this Agreement;
c. All requisite proceedings have been taken to authorize it to enter
into and perform this Agreement;
d. It is an investment company properly registered under the 1940 Act;
and
e. A registration statement under the 1940 Act (and if Shares of the Fund
are offered publicly, under the Securities Act of 1933, as amended
(the "1933 Act")) has been filed and will be effective and remain
effective during the term of this Agreement. Each Fund also warrants
that as of the effective date of this Agreement, all necessary filings
6.
under the securities laws of the states in which the Fund offers or
sells its Shares have been made.
SECTION 5. COMPENSATION OF AGENT.
The Agent shall be entitled to reasonable compensation for its services,
expenses, out of pocket costs and disbursements as Agent hereunder, as agreed
upon from time to time between the Fund and the Agent.
SECTION 6. TERM OF AGREEMENT.
This Agreement shall become effective as of its execution, shall continue
in full force and effect until terminated as hereinafter provided and may be
terminated by either party by an instrument in writing delivered or mailed,
postage prepaid to the other party, such termination to take effect not sooner
than sixty (60) days after the date of such delivery or mailing.
Termination of this Agreement with respect to the coverage of any one
particular Fund or Portfolio shall in no way affect the rights and duties under
this Agreement with respect to any other Fund or Portfolio.
Upon termination of the Agreement or termination of its coverage with
respect to any Fund, such Fund shall pay to the Agent such compensation as may
be due as of the date of such termination (or with respect to the applicable
Fund with respect to a coverage termination) and shall likewise reimburse the
Agent for its costs, expenses and disbursements.
SECTION 7. SUCCESSOR AGENT.
If a successor agent for any Fund shall be appointed by a Fund, the Agent
shall upon termination deliver to such successor agent at the office of the
Agent all properties of such Fund held by it hereunder. If no such successor
agent shall be appointed, the Agent shall at its office upon receipt of Proper
Instructions deliver such properties in accordance with such instructions.
SECTION 8. GENERAL.
SECTION 8.1 MASSACHUSETTS LAW TO APPLY. This Agreement shall be governed
by, construed and the provisions thereof interpreted under and in accordance
with laws of The Commonwealth of Massachusetts excluding that body of law
applicable to conflicts of law.
7.
SECTION 8.2 PRIOR AGREEMENTS. This Agreement supersedes and terminates, as
of the date hereof, all prior agreements between any Fund and the Agent relating
to fund accounting and recordkeeping services regarding such Fund.
SECTION 8.3 ASSIGNMENT. This Agreement may not be assigned by (a) a Fund
without the prior written consent of the Agent or (b) by the Agent without the
prior written consent of the Funds, except that either party may, without such
prior consent, assign to an entity controlling, controlled by or under common
control with such party or to a successor of all of or a substantial portion of
its business.
SECTION 8.4 INTERPRETIVE AND ADDITIONAL PROVISIONS. In connection with the
operation of this Agreement, the Agent and the Funds may from time to time agree
on such provisions interpretive of or in addition to the provisions of this
Agreement as may in their joint opinion be consistent with the general tenor of
this Agreement. Any such interpretive or additional provisions shall be in a
writing signed by all parties and shall be annexed hereto, provided that no such
interpretive or additional provisions shall contravene any applicable federal or
state regulations or any provision of a Fund's governing documents. No
interpretive or additional provisions made as provided in the preceding sentence
shall be deemed to be an amendment of this Agreement.
SECTION 8.5 ADDITIONAL FUNDS. In the event that any management investment
company in addition to those listed on Appendix A hereto desires to have the
Agent render services as agent under the terms hereof, it shall so notify the
Agent in writing, and if the Agent agrees in writing to provide such services,
such management investment company shall become a Fund hereunder and be bound by
all terms and conditions and provisions hereof with respect to such Fund.
SECTION 8.6 ADDITIONAL PORTFOLIOS. In the event that any Fund establishes
one or more series of Shares in addition to those set forth on Appendix A hereto
with respect to which it desires to have the Agent render services as agent
under the terms hereof, it shall so notify the Agent in writing, and if the
Agent agrees in writing to provide such services, such series of Shares shall
become a Portfolio hereunder.
SECTION 8.7 AMENDMENTS. NO amendment to this Agreement shall be effective
unless it is in writing and signed by a duly authorized representative or each
party. The term "Agreement," as used herein, includes all schedules, addenda,
exhibits, appendices and attachments hereto and any future written amendments,
modifications, or supplements made in accordance herewith.
SECTION 8.8 REMOTE ACCESS SERVICES ADDENDUM. Each Fund and the Agent hereby
agree to the terms of the Remote Access Services Addendum hereto.
SECTION 8.9 SERVICES NOT EXCLUSIVE. Each Fund hereby acknowledges that the
services of the Agent hereunder are not to be deemed exclusive to any Fund and
the Agent remains free to render similar services to others.
8.
SECTION 8.10 NOTICES. Any notice, instruction or other instrument required
to be given hereunder may be delivered in person to the offices of the parties
as set forth herein during normal business hours or delivered prepaid registered
mail or by telex, cable or telecopy to the parties at the following addresses or
such other addresses as may be notified by any party from time to time.
To any Fund: c/o Calamos Asset Management, Inc.
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: _________________, Treasurer
Telephone: (000) 000-0000
Telecopy: (000)000-0000
To the Agent: STATE STREET BANK AND TRUST COMPANY
Xxxxxx Xxxxxx Building
One Heritage Drive, JPB3N
North Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Vice President
Telephone: 000-000-0000
Telecopy: 000-000-0000
Such notice, instruction or other instrument shall be deemed to have been served
in the case of a registered letter at the expiration of five business days after
posting, in the case of cable twenty-four hours after dispatch and, in the case
of telex, immediately on dispatch and if delivered outside normal business hours
it shall be deemed to have been received at the next time after delivery when
normal business hours commence and in the case of cable, telex or telecopy on
the business day after the receipt thereof. Evidence that the notice was
properly addressed, stamped and put into the post shall be conclusive evidence
of posting.
SECTION 8.11 HEADINGS NOT CONTROLLING. Headings used in this Agreement are
for reference purposes only and shall not be deemed a part of this Agreement.
SECTION 8.12 SURVIVAL. All provisions regarding indemnification, warranty,
liability and limits thereon shall survive the expiration or termination of this
Agreement.
SECTION 8.13 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all such
counterparts taken together shall constitute one and the same agreement.
SECTION 8.14 SEVERABILITY. If any provision or provisions of this Agreement
shall be held to be invalid, unlawful or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired.
9.
SECTION 8.15 REPRODUCTION OF DOCUMENTS. This Agreement and all schedules,
addenda, exhibits, appendices, attachments and amendments hereto may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties hereto all/each agree that
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
10.
SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the date first above-written.
SIGNATURE ATTESTED TO BY: EACH REGISTERED MANAGEMENT INVESTMENT
COMPANY SET FORTH ON APPENDIX A HERETO
By:
------------------------------------- ------------------------------------
Xxx X. XxXxxxxx, Assistant Secretary Xxxxxx Xxxxx, Treasurer
SIGNATURE ATTESTED TO BY: STATE STREET BANK AND TRUST COMPANY
By:
------------------------------------- ------------------------------------
Xxxxxxxxx X. Poster, Vice President Xxxxxx X. Xxxxxx, Executive
Vice President
To: State Street Bank and Trust Company
From: Fund Name: __________________________________________
Fund Address: _____________________________________________
Date: ______________
Re: PRICE SOURCE AUTHORIZATION
Reference is made to that certain Master Administration and Accounting Services
Agreement dated March 15, 2004 (as amended, restated, modified or supplemented
from time to time, the "Agreement") by and among each Fund and the Agent.
Capitalized terms used in this Price Source Authorization or in any attachment
or supplement shall have the meanings provided in the Agreement unless otherwise
specified. Pursuant to the Agreement, each Fund hereby directs the Agent to
calculate the net asset value ("NAV") of such Fund or, if applicable, its
Portfolios, in accordance with the terms of such Fund's or Portfolio's currently
effective prospectus. The Agent will perform the NAV calculation subject to the
terms and conditions of the Agreement and this Price Source Authorization.
Each Fund hereby authorizes the Agent to use the pricing sources specified on
the attached Authorization Matrix (as amended from time to time) as sources for
prices of assets in calculating the NAV of such Fund. Each Fund understands that
the Agent does not assume responsibility for the accuracy of the quotations
provided by the specified pricing sources and that the Agent shall have no
liability for any incorrect data provided by the pricing sources specified by
any Fund, except as may arise from the Agent's lack of reasonable care in
performing agreed upon tolerance checks as to the data furnished and calculating
the NAV of a Fund in accordance with the data furnished to the Agent. Each Fund
also acknowledges that prices supplied by such Fund or an affiliate may be
subject to approval of that Fund's Board of Trustees or Board of Directors, as
applicable, and are not the responsibility of the Agent.
Each Fund agrees to Indemnify and hold the Agent harmless from any claim, loss
or damage arising as a result of using prices furnished by any specified pricing
source.
The Agent agrees that written notice of any change in the name of any specified
pricing source will be sent to affected Fund as such information is available to
the Agent.
Kindly acknowledge your acceptance of this authorization in the space provided
below.
EACH FUND LISTED ON APPENDIX A HERETO
By: The foregoing authorization is hereby
--------------------------------- accepted.
Name:
------------------------------- STATE STREET BANK AND TRUST COMPANY
Title:
------------------------------
By:
------------------------------------
,Vice President
SCHEDULE A
TO
MASTER ACCOUNTING SERVICES AGREEMENT
INFORMATION REQUIRED TO BE SUPPLIED RESPONSIBLE PARTY
----------------------------------- -----------------
Portfolio Trade Authorizations Investment Adviser
Currency Transactions Investment Adviser
Cash Transaction Report Custodian
Portfolio Prices Third Party Vendors/Investment Adviser
Exchange Rates Third Party Vendors/Investment Adviser
Capital Stock Activity Report Transfer Agent
Dividend/Distribution Schedule Investment Adviser
Dividend/Distribution Declaration Investment Adviser
Dividend Reconciliation/Confirmation Transfer Agent
Corporate Actions Third Party Vendors/Custodian
Service Provider Fee Schedules Investment Adviser
Expense Budget Investment Adviser/Administrator
Amortization Policy Investment Adviser
Accounting Policy/Complex Investments Investment Adviser
Audit Management Letter Auditor
Annual Shareholder Letter Investment Adviser
Annual/Semi-Annual Reports Investment Adviser/Administrator
Declaration of Trust or Articles Investment Adviser/Administrator
of incorporation, as amended
By-Laws, as amended Investment Adviser/Administrator
Currently Effective Registration Investment Adviser/Administrator
Statement under the 1933 and 1940 Act
Current Prospectus(es) and Statement(s) Investment Adviser/Administrator
of Additional Information
Such other certificates, documents or Investment Adviser/Administrator
opinions which the Agent may, in its
reasonable discretion, deem necessary
or appropriate in the proper
performance of its duties
(i)
REMOTE ACCESS SERVICES ADDENDUM
TO
MASTER ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
ADDENDUM to that certain Master Administration and Accounting Services
Agreement dated as of March 15, 2004 (the "Agreement") by and among each
registered management investment company identified on Appendix A thereto and
made subject thereto pursuant to Section 9.5 thereof (each, a "Customer") and
State Street Bank and Trust Company, including its subsidiaries and affiliates
("State Street").
State Street has developed and utilizes proprietary accounting and other
systems in conjunction with the services which State Street provides to the
Customer. In this regard, State Street maintains certain information in
databases under its control and ownership which it makes available to its
customers (the "Remote Access Services").
The Services
State Street agrees to provide the Customer, and its designated investment
advisors, consultants or other third parties authorized by State Street
("Authorized Designees") with access to In-Sight(SM) as described in Exhibit A
or such other systems as may be offered from time to time (the "System") on a
remote basis.
Security Procedures
The Customer agrees to comply, and to cause its Authorized Designees to comply,
with remote access operating standards and procedures and with user
identification or other password control requirements and other security
procedures as may be issued from time to time by State Street for use of the
System and access to the Remote Access Services. The Customer agrees to advise
State Street immediately in the event that it learns or has reason to believe
that any person to whom it has given access to the System or the Remote Access
Services has violated or intends to violate the terms of this Addendum and the
Customer will cooperate with State Street in seeking injunctive or other
equitable relief. The Customer agrees to discontinue use of the System and
Remote Access Services, if requested, for any security reasons cited by State
Street.
Fees
Fees and charges for the use of the System and the Remote Access Services and
related payment terms shall be as set forth in the fee schedule in effect from
time to time between the parties. The Customer shall be responsible for any
tariffs, duties or taxes imposed or levied by any government or governmental
agency by reason of the transactions contemplated by this Addendum, including,
without limitation, federal, state and local taxes, use, value added and
personal property taxes (other than income, franchise or similar taxes which may
be imposed or assessed against State Street). Any claimed exemption from such
tariffs, duties or taxes shall be supported by proper documentary evidence
delivered to State Street.
Proprietary Information/Injunctive Relief
The System and Remote Access Services described herein and the databases,
computer programs, screen formats, report formats, interactive design
techniques, formulae, processes, systems, software, know-how, algorithms,
programs, training aids, printed materials, methods, books, records, files,
documentation and other information made available to the Customer by State
Street as part of the Remote Access Services and through the use of the System
and all copyrights, patents, trade secrets and
other proprietary rights of State Street related thereto are the exclusive,
valuable and confidential property of State Street and its relevant licensors
(the "Proprietary Information"). The Customer agrees on behalf of itself and its
Authorized Designees to keep the Proprietary Information confidential and to
limit access to its employees and Authorized Designees (under a similar duty of
confidentiality) who require access to the System for the purposes intended. The
foregoing shall not apply to Proprietary Information in the public domain or
required by law to be made public.
The Customer agrees to use the Remote Access Services only in connection with
the proper purposes of this Addendum. The Customer will not, and will cause its
employees and Authorized Designees not to, (i) permit any third party to use the
System or the Remote Access Services, (ii) sell, rent, license or otherwise use
the System or the Remote Access Services in the operation of a service bureau or
for any purpose other than as expressly authorized under this Addendum, (iii)
use the System or the Remote Access Services for any fund, trust or other
investment vehicle without the prior written consent of State Street, or (iv)
allow or cause any information transmitted from State Street's databases,
including data from third party sources, available through use of the System or
the Remote Access Services, to be published, redistributed or retransmitted for
other than use for or on behalf of the Customer, as State Street's customer.
The Customer agrees that neither it nor its Authorized Designees will modify the
System in any way; enhance or otherwise create derivative works based upon the
System, nor will your or your Authorized Designees reverse engineer, decompile
or otherwise attempt to secure the source code for all or any part of the
System.
The Customer acknowledges that the disclosure of any Proprietary Information, or
of any information which at law or equity ought to remain confidential, will
immediately give rise to continuing irreparable injury to State Street
inadequately compensable in damages at law and that State Street shall be
entitled to obtain immediate injunctive relief against the breach or threatened
breach of any of the foregoing undertakings, in addition to any other legal
remedies which may be available.
Limited Warranties
State Street represents and warrants that it is the owner of and has the right
to grant access to the System and to provide the Remote Access Services
contemplated herein. Because of the nature of computer information technology
including, but not limited to, the use of the Internet, and the necessity of
relying upon third party sources, and data and pricing information obtained from
third parties, the System and Remote Access Services are provided "AS IS", and
the Customer and its Authorized Designees shall be solely responsible for the
investment decisions, results obtained, regulatory reports and statements
produced using the Remote Access Services. State Street and its relevant
licensors will not be liable to the Customer or its Authorized Designees for any
direct or indirect, special, incidental, punitive or consequential damages
arising out of or in any way connected with the System or the Remote Access
Services, nor shall either party be responsible for delays or nonperformance
under this Addendum arising out of any cause or event beyond such party's
control.
State Street will take reasonable steps to ensure that its products (and those
of its third-party suppliers) reflect the available state of the art technology
to offer products that are Year 2000 compliant, including, but not limited to,
century recognition of dates, calculations that correctly compute same century
and multi century formulas and date values, and interface values that reflect
the date issues arising between now and December 31, 2099, and if any changes
are required, State Street will make the changes to its products at no cost to
you and in a commercially reasonable time frame and will require third-party
suppliers to do likewise. The Customer will do likewise for its systems.
ii
EXCEPT AS EXPRESSLY SET FORTH IN THIS ADDENDUM, STATE STREET, FOR ITSELF AND ITS
RELEVANT LICENSORS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THE
SYSTEM AND THE SERVICES TO BE RENDERED HEREUNDER, WHETHER EXPRESS OR IMPLIED
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
Infringement
State Street will defend or, at our option, settle any claim or action brought
against the Customer to the extent that it is based upon an assertion that
access to the System or use of the Remote Access Services by the Customer under
this Addendum constitutes direct infringement of any patent or copyright or
misappropriation of a trade secret, provided that the Customer notifies State
Street promptly in writing of any such claim or proceeding and cooperates with
State Street in the defense of such claim or proceeding. Should the System or
the Remote Access Services or any part thereof become, or in State Street's
opinion be likely to become, the subject of a claim of infringement or the like
under any applicable patent or copyright or trade secret laws, State Street
shall have the right, at State Street's sole option, to (i) procure for the
Customer the right to continue using the System or the Remote Access Services,
(ii) replace or modify the System or the Remote Access Services so that the
System or the Remote Access Services becomes noninfringing, or (iii) terminate
this Addendum without further obligation.
Termination
Either party to the Agreement may terminate this Addendum (i) for any reason by
giving the other party at least one-hundred and eighty (180) days prior written
notice in the case of notice of termination by State Street to the Customer or
thirty (30) days notice in the case of notice from the Customer to State Street
of termination, or (ii) immediately for failure of the other party to comply
with any material term and condition of the Addendum by giving the other party
written notice of termination. This Addendum shall in any event terminate within
ninety (90) days after the termination of the Agreement. In the event of
termination, the Customer will return to State Street all copies of
documentation and other confidential information in its possession or in the
possession of its Authorized Designees. The foregoing provisions with respect to
confidentiality and infringement will survive termination for a period of three
(3) years.
Miscellaneous
This Addendum and the exhibit hereto constitute the entire understanding of the
parties to the Agreement with respect to access to the System and the Remote
Access Services. This Addendum cannot be modified or altered except in a writing
duly executed by each of State Street and the Customer and shall be governed by
and construed in accordance with the laws of The Commonwealth of Massachusetts.
By its execution of the Agreement, the Customer (a) confirms to State Street
that it informs all Authorized Designees of the terms of this Addendum; (b)
accepts responsibility for its and its Authorized Designees' compliance with the
terms of this Addendum; and (c) indemnifies and holds State Street harmless from
and against any and all costs, expenses, losses, damages, charges, counsel fees,
payments and liabilities arising from any failure of the Customer or any of its
Authorized Designees to abide by the terms of this Addendum.
iii
EXHIBIT A
TO
REMOTE ACCESS SERVICES ADDENDUM
IN-SIGHT(SM)
System Product Description
In-Sight(SM) provides bilateral information delivery, interoperability, and
on-line access to State Street. In-Sight(SM) allows users a single point of
entry into State Street's diverse systems and applications. Reports and data
from systems such as Investment Policy Monitor(SM), Multicurrency Horizon(SM),
Securities Lending, Performance & Analytics and Electronic Trade Delivery can be
accessed through In-Sight(SM). This Internet-enabled application is designed to
run from a Web browser and perform across low-speed data lines or corporate
high-speed backbones. In-Sight(SM) also offers users a flexible toolset,
including an ad-hoc query function, a custom graphics package, a report
designer, and a scheduling capability. Data and reports offered through
In-Sight(SM) will continue to increase in direct proportion with the customer
roll out, as it is viewed as the information delivery system will grow with
State Street's customers.
iv
October 31, 0000
Xxxxx Xxxxxx Xxxx and Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Vice President, JPB3N
Xxxxxx X. Xxxxx, Vice President, LCC4
Ladies and Gentlemen:
Reference is made to that certain Master Services Agreement by and among
the Agent and each Fund dated as of March 15,2004 (as amended, restated,
modified or supplemented from time to time, the "AGREEMENT"). Capitalized terms
used herein and not otherwise defined shall have the meanings given to such
terms in the Agreement.
Reference is further made to that certain letter agreement by and among the
Agent and each Fund party thereto (by virtue of its status as a party to the
Agreement) dated as of March 15, 2004 (as amended, restated, modified or
supplemented from time to time, the "FIRST SIDE LETTER").
Reference is finally made to Calamos Convertible Opportunities and Income
Fund, Calamos Convertible and High Income Fund and Calamos Global Total Return
Fund (collectively, the "ADDITIONAL FUNDS").
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, each Fund hereby requests the Agent's consent to the
terms and provisions of this letter agreement (the "SECOND SIDE LETTER").
1. Application to All Funds. For the avoidance of doubt, each Fund does
hereby acknowledge and confirm to the Agent that the First Side Letter does, and
this Second Side Letter shall, each apply for their respective periods of
coverage on a cumulative and aggregate basis to all of the Funds.
2. Cap on Potential Liability of Agent. In the event that each of the
Additional Funds has retained the Agent to perform services under the Agreement
on or before the date hereof (via their due execution of additional fund
letter(s) in the manner set forth in Section 8.5 of the Agreement), then
commencing on November 1, 2004, pursuant to Section 3 of the Agreement, the
Agent's cumulative liability for each calendar year with respect to the Funds,
regardless of the form of action or legal theory, shall be limited to actual or
direct damage up to the greater of (i) one (1) times its total compensation
earned and fees payable under the Agreement during the calendar year (or
annualized period) preceding the event giving liability or (ii) Seven Million
Five Hundred Thousand Dollars ($7,500,000.00). It being specifically understood
by each Fund that in the event that all of the Additional Funds have not
retained the Agent as set forth above, the Agent's potential liability shall
remain as originally capped by the First Side Letter.
State Street Bank and Trust Company
October 31, 2004
Page 2
3. Continuing Coverage of First Side Letter. In any event, and even in the
event that each of the Additional Funds have retained the Agent as set forth
above, the terms and provisions of the First Side Letter including, the
cumulative cap on Agent's liability imposed thereby shall continue govern all
events or circumstances, if any, which have or may arise or occur from the
period from March 15, 2004 through the date hereof and give rise to the Agent's
liability, even if any such event or occurrence becomes known after the date
hereof and/or continues to give rise to Agent liability beyond the date hereof.
4. Confidentiality. Each Fund agrees that it shall keep the provisions of
the First Side Letter and this Second Side Letter confidential and shall not
disclose the same to any other person or entity other than a regulator of any
Fund (as such regulator may require), and except at the request, or with the
prior written consent, of the Agent.
5. Captions. The captions herein have been inserted solely for convenience
or reference and in no way define, limit or describe the scope or substance of
any provision of the First Side Letter or this Second Side Letter.
If the foregoing is acceptable to you, kindly indicate your consent by
executing the enclosed duplicate original copy of this Second Side Letter. This
instrument is executed under seal as of the date and year first above-written
and shall be governed by, and construed in accordance with, the laws of The
Commonwealth of Massachusetts.
Sincerely,
EACH REGISTERED MANAGEMENT
INVESTMENT COMPANY PARTY TO THE
AGREEMENT
By: /s/ Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxx,
Treasurer, Duly Authorized
ACCEPTED AND AGREED:
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx,
Executive Vice President
