Exhibit (h)(4)
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.
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 COMPANY
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, Treasurer, Duly
Authorized
ACCEPTED AND AGREED:
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Executive Vice
President
