Exhibit (h)(10)
TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 1st day of January 2007,
by and among CALAMOS INVESTMENT TRUST, a Massachusetts business trust, CALAMOS
ADVISORS TRUST, a Massachusetts business trust (collectively the "Trusts") and
U.S. BANCORP FUND SERVICES, LLC, a Wisconsin limited liability company
("USBFS"). CALAMOS FINANCIAL SERVICES LLC, a limited liability company organized
under the laws of the State of Delaware ("CFS"), is a party hereto with respect
to Section 4 only.
WHEREAS, the Trusts are registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company,
and are authorized to issue shares of beneficial interest in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets;
WHEREAS, USBFS is, among other things, in the business of administering
transfer and dividend disbursing agent functions for the benefit of its
customers; and
WHEREAS, CFS, as distributor for the Trusts, provides certain
shareholder/prospective shareholder services on behalf of the Trusts;
WHEREAS, the Trusts desire to retain USBFS to provide transfer and dividend
disbursing agent services to each series of the Trusts listed on Exhibit A
hereto (as amended from time to time) (each a "Fund" and collectively, the
"Funds").
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
1. APPOINTMENT OF USBFS AS TRANSFER AGENT
The Trusts hereby appoint USBFS as transfer agent of the Trusts on the
terms and conditions set forth in this Agreement, and USBFS hereby accepts
such appointment and agrees to perform the services and duties set forth in
this Agreement. The services and duties of USBFS shall be confined to those
matters expressly set forth herein, and no implied duties are assumed by or
may be asserted against USBFS hereunder.
2. SERVICES AND DUTIES OF USBFS
USBFS shall provide the following transfer agent and dividend disbursing
agent services to the Fund:
A. Receive and process all orders for the purchase, exchange, and/or
redemption of shares in accordance with Rule 22c-1 under the 1940 Act.
B. Process purchase orders with prompt delivery, where appropriate, of
payment and supporting documentation to the Trusts' custodian, and
issue the appropriate number of uncertificated shares with such
uncertificated shares being held in the appropriate shareholder
account.
C. Arrange for the issuance of shares obtained through transfers of funds
from Fund shareholders' accounts at financial institutions and arrange
for the exchange of shares for shares of other eligible investment
companies, when permitted by the Fund's prospectus (the "Prospectus").
D. Process redemption requests received in good order and, where
relevant, deliver appropriate documentation to the Trusts' custodian.
E. Pay monies upon receipt from the Trusts' custodian, where relevant, in
accordance with the instructions of redeeming shareholders.
F. Process transfers of shares in accordance with the shareholder's
instructions, after receipt of appropriate documentation from the
shareholder as specified in the Prospectus.
G. Process exchanges between Funds and/or classes of shares of Funds both
within the same family of funds and with a First American Prime
Obligations Fund, if applicable.
H. Prepare and transmit payments for dividends and distributions declared
by the Trusts with respect to the Fund, after deducting any amount
required to be withheld by any applicable laws, rules and regulations
and in accordance with shareholder instructions.
I. Serve as the Fund's agent in connection with accumulation, open
account or similar plans (e.g., periodic investment plans and periodic
withdrawal plans).
J. Make changes to shareholder records, including, but not limited to,
address changes in plans (e.g., systematic withdrawal, automatic
investment, dividend reinvestment).
K. Handle load and multi-class processing, including rights of
accumulation and purchases by letters of intent.
L. Record the issuance of shares of the Fund and maintain, pursuant to
Rule 17Ad-10(e) promulgated under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), a record of the total number of
shares of the Fund which are authorized, issued and outstanding.
M. Prepare shareholder meeting lists and, as necessary, mail, receive and
tabulate proxies.
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N. Mail shareholder reports and Prospectuses to current shareholders.
O. Prepare and file U.S. Treasury Department Forms 1099 and other
appropriate information returns required with respect to dividends and
distributions for all shareholders.
P. Provide shareholder account information upon request and prepare and
mail confirmations and statements of account to shareholders for all
purchases, redemptions and other confirmable transactions as agreed
upon with the Trusts.
Q. Mail requests for shareholders' certifications under penalties of
perjury and pay on a timely basis to the appropriate federal
authorities any taxes to be withheld on dividends and distributions
paid by the Trusts, all as required by applicable federal tax laws and
regulations.
R. Provide a Blue Sky system that will enable the Trusts to monitor the
total number of shares of the Fund sold in each state; provided that
the Trusts, not USBFS, are responsible for ensuring that shares are
not sold in violation of any requirement under the securities laws or
regulations of any state.
S. Answer correspondence from shareholders, securities brokers and others
relating to USBFS's duties hereunder.
T. Reimburse the Fund each month for all material losses resulting from
"as of processing errors for which USBFS is responsible in accordance
with the "as of processing guidelines set forth on Exhibit B hereto.
U. USBFS shall bear all expenses associated with demand deposit accounts
maintained by USBFS with financial institutions from time to time for
the receipt and disbursement of monies paid by, or payable to,
investors in the series of the Trusts pursuant to this Agreement and
shall be entitled to retain any earnings credits or other income
arising from those accounts.
V. USBFS shall waive all fees and other expenses associated with
maintenance of IRAs and Xxxxxxxxx Education Savings Accounts.
3. ADDITIONAL SERVICES TO BE PROVIDED BY USBFS
A. If the Trusts so elect, by including the service they wish to receive
in their fee schedule, USBFS shall provide the following services that
are further described and that may be subject to additional terms and
conditions specified in their respective exhibits, as such may be
amended from time to time:
Internet Access, Fan Web, Vision Mutual Fund Gateway (Exhibit C)
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FAN Mail Services (Exhibit D)
The Trusts hereby acknowledge that exhibits are an integral part of
this Agreement and, to the extent services included in Exhibit C
and/or Exhibit D are selected by the Trusts, such services shall also
be subject to the terms and conditions of this Agreement. To the
extent the terms and conditions of this Agreement conflict with the
terms and conditions included in Exhibit C and/or Exhibit D, as
applicable, the exhibits shall control. The provisions of Exhibit C
and/or Exhibit D, as applicable, shall continue in effect for as long
as this Agreement remains in effect, unless sooner terminated pursuant
to Section 14 hereof.
B. USBFS shall allow the Trusts access to various fund data, systems,
industry information and processes as the parties may agree to from
time to time, through Mutual Fund eXchange ("MFx"), subject to the
terms of this Agreement and the additional terms and conditions
contained in the on-line MFx access agreement to be entered into upon
accessing MFx for the first time. USBFS shall enable the Trusts to
access MFx services by supplying the Trusts with necessary software,
training, information and connectivity support as mutually agreed
upon, all of which shall constitute confidential knowledge and
information of USBFS and shall be used by the Trusts only as necessary
to access MFx services pursuant to this Agreement. The Trusts shall
provide for the security of all codes and system access mechanisms
relating to MFx provided to it by USBFS and implement such security
procedures and/or devices to ensure the integrity of MFx. The Trusts
hereby understand that USBFS will perform periodic maintenance to the
MFx hardware and software being accessed, which may cause temporary
service interruptions. USBFS shall notify the Trusts of all planned
outages and, to the extent possible, will perform any necessary
maintenance during non-business hours.
The Trusts hereby acknowledge that all programs, software, manuals and
other written information relating to MFx access provided by USBFS
pursuant to this Agreement shall remain the exclusive property of
USBFS at all times.
The Trusts acknowledge that they are responsible for determining the
suitability and accuracy of the information obtained through its
access to MFx. USBFS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESSED
OR IMPLIED, WITH RESPECT TO THE SUITABILITY AND ACCURACY OF FUND DATA,
SYSTEMS, INDUSTRY INFORMATION AND PROCESSES ACCESSED THROUGH MFx.
However, USBFS will assist the Trusts in verifying the accuracy of any
of the information made available to the Trusts through MFx and
covered by this Agreement.
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In the event of termination of this Agreement, in addition to the
requirements set forth in Section 15 hereof, the Trusts shall
immediately end their access to MFx and return all codes, system
access mechanisms, programs, manuals and other written information to
USBFS, and shall destroy or erase all such information on any
diskettes or other storage medium, unless such access continues to be
permitted pursuant to a separate agreement.
4. SERVICES TO BE PROVIDED BY CFS
The Administrative Services Agreement dated as of August 1, 2005, by and
between CFS and USBFS, is attached hereto and incorporated herein as
Exhibit F.
5. LOST SHAREHOLDER DUE DILIGENCE SEARCHES AND SERVICING
The Trusts hereby acknowledge that USBFS has an arrangement with an outside
vendor to conduct lost shareholder searches required by Rule 17Ad-17 under
the Securities Exchange Act of 1934, as amended. Costs associated with such
searches will be passed through to the Trusts as an out-of-pocket expense
in accordance with the fee schedule set forth in Exhibit E hereto. If a
shareholder remains lost and the shareholder's account unresolved after
completion of the mandatory Rule 17Ad-17 search, the Trusts hereby
authorize vendor to enter, at its discretion, into fee sharing arrangements
with the lost shareholder (or such lost shareholder's representative or
executor) to conduct a more in-depth search in order to locate the lost
shareholder before the shareholder's assets escheat to the applicable
state. The Trusts hereby acknowledge that USBFS is not a party to these
arrangements and does not receive any revenue sharing or other fees
relating to these arrangements. Furthermore, the Trusts hereby acknowledge
that vendor may receive up to 35% of the lost shareholder's assets as
compensation for its efforts in locating the lost shareholder.
6. ANTI-MONEY LAUNDERING PROGRAM
The Trusts acknowledge that they have had an opportunity to review,
consider and comment upon the written procedures provided by USBFS
describing various tools used by USBFS which are designed to promote the
detection and reporting of potential money laundering activity by
monitoring certain aspects of shareholder activity as well as written
procedures for verifying a customer's identity (collectively, the
"Procedures"). Further, the Trusts have determined that the Procedures, as
part of the Trusts' overall anti-money laundering program, are reasonably
designed to prevent the Fund from being used for money laundering or the
financing of terrorist activities and to achieve compliance with the
applicable provisions of the USA Patriot Act of 2002 and the implementing
regulations thereunder.
Based on this determination, the Trusts hereby instruct and direct USBFS to
implement the Procedures on the Trusts' behalf, as such may be amended or
revised from time to
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time. It is contemplated that these Procedures will be amended from time to
time by the parties as additional regulations are adopted and/or regulatory
guidance is provided relating to the Trusts' anti-money laundering
responsibilities.
USBFS agrees to provide to the Trusts:
A. Prompt written notification of any transaction or combination of
transactions that USBFS believes, based on the Procedures, evidence
money laundering activity in connection with the Trusts or any
shareholder of the Fund;
B. Prompt written notification of any customer(s) that USBFS reasonably
believes, based upon the Procedures, to be engaged in money laundering
activity, provided that the Trusts agree not to communicate this
information to the customer;
C. Any reports received by USBFS from any government agency or applicable
industry self-regulatory organization pertaining to USBFS's anti-money
laundering monitoring on behalf of the Trusts;
D. Prompt written notification of any action taken in response to
anti-money laundering violations as described in (A), (B) or (C)
above; and
E. Certified annual and quarterly reports of its monitoring and customer
identification activities on behalf of the Trusts.
The Trusts hereby direct, and USBFS acknowledges, that USBFS shall (i)
permit federal regulators access to such information and records maintained
by USBFS and relating to USBFS's implementation of the Procedures, on
behalf of the Trusts, as they may request, and (ii) permit such federal
regulators to inspect USBFS's implementation of the Procedures on behalf of
the Trusts.
7. COMPENSATION
Other than for services, if any, to be provided pursuant to Section 3(A) of
this Agreement, USBFS shall be compensated for providing the services set
forth in this Agreement in accordance with the fee schedule set forth on
Exhibit E hereto (as amended from time to time). For services to be
provided pursuant to Section 3(A) of this Agreement, if applicable, USBFS
shall be compensated in accordance with the fee schedule set forth in the
appendix to the exhibit that relates to the services selected by the
Trusts. USBFS shall also be compensated for such out-of-pocket expenses
(e.g., telecommunication charges, postage and delivery charges, and
reproduction charges) as are reasonably incurred by USBFS in performing its
duties hereunder. The Trusts shall pay all such fees and reimbursable
expenses within 30 calendar days following receipt of the billing notice,
except for any fee or expense subject to a good faith dispute. The Trusts
shall notify USBFS in writing within 30 calendar days following receipt of
each invoice if the Trusts are disputing any amounts in good faith. The
Trusts shall pay such
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disputed amounts within 10 calendar days of the day on which the parties
agree to the amount to be paid. With the exception of any fee or expense
the Trusts are disputing in good faith as set forth above, unpaid invoices
shall accrue a finance charge of 1 1/2% per month after the due date.
Notwithstanding anything to the contrary, amounts owed by the Trusts to
USBFS shall only be paid out of assets and property of the particular Fund
involved.
8. REPRESENTATIONS AND WARRANTIES
A. Each of theTrusts hereby represents and warrants to USBFS, which
representations and warranties shall be deemed to be continuing
throughout the term of this Agreement, that:
(1) It is duly organized and existing under the laws of its
jurisdiction of its organization, with full power to carry on its
business as now conducted, to enter into this Agreement and to
perform their obligations hereunder;
(2) This Agreement has been duly authorized, executed and delivered
by the Trust in accordance with all requisite action and
constitutes a valid and legally binding obligation of the Trust,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and
secured parties;
(3) It is conducting its business in compliance in all material
respects with all applicable laws and regulations, both state and
federal, and has obtained all regulatory approvals necessary to
carry on its business as now conducted; there is no statute,
rule, regulation, order or judgment binding on it and no
provision of its charter, bylaws or any contract binding it or
affecting its property which would prohibit its execution or
performance of this Agreement; and
(4) A registration statement under the 1940 Act and the Securities
Act of 1933, as amended, has been effective prior to the
effective date of this Agreement and will remain effective during
the term of this Agreement, and appropriate state securities law
filings will continue to be made prior to the effective date of
this Agreement and will continue to be made during the term of
this Agreement as necessary to enable the Trusts to make a
continuous public offering of its shares.
B. USBFS hereby represents and warrants to the Trusts, which
representations and warranties shall be deemed to be continuing
throughout the term of this Agreement, that:
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(1) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its
business as now conducted, to enter into this Agreement and to
perform its obligations hereunder;
(2) This Agreement has been duly authorized, executed and delivered
by USBFS in accordance with all requisite action and constitutes
a valid and legally binding obligation of USBFS, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured
parties;
(3) It is conducting its business in compliance in all material
respects with all applicable laws and regulations, both state and
federal, and has obtained all regulatory approvals necessary to
carry on its business as now conducted; there is no statute,
rule, regulation, order or judgment binding on it and no
provision of its charter, bylaws or any contract binding it or
affecting its property which would prohibit its execution or
performance of this Agreement; and
(4) It is a registered transfer agent under the Exchange Act.
9. STANDARD OF CARE; INDEMNIFICATION; LIMITATION OF LIABILITY
A. USBFS shall exercise reasonable care in the performance of its duties
under this Agreement. USBFS, its directors, officers, employee and any
other controlled person shall not be liable for any error of judgment
or mistake of law or for any loss suffered by the Trusts in connection
with their duties under this Agreement, including losses resulting
from mechanical breakdowns or the failure of communication or power
supplies beyond USBFS's control, except a loss arising out of or
relating to USBFS's refusal or failure to comply with the terms of
this Agreement or from its bad faith, negligence, or willful
misconduct in the performance of its duties under this Agreement.
Notwithstanding any other provision of this Agreement, if USBFS has
exercised reasonable care in the performance of its duties under this
Agreement, the Trusts shall indemnify and hold harmless USBFS from and
against any and all claims, demands, losses, expenses, and liabilities
of any and every nature (including reasonable attorneys' fees) that
USBFS may sustain or incur or that may be asserted against USBFS by
any person arising out of any action taken or omitted to be taken by
it in performing the services hereunder (i) in accordance with the
foregoing standards, or (ii) in reliance upon any written or oral
instruction provided to USBFS by any duly authorized officer of the
Trusts, as approved by the Board of Trustees of the Trusts (the "Board
of Trustees"), except for any and all claims, demands, losses,
expenses, and liabilities arising out of or relating to USBFS's
refusal or failure to comply with the terms of this Agreement or from
its bad faith, negligence or willful misconduct in the performance of
its duties under this Agreement. This
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indemnity shall be a continuing obligation of the Trusts, its
successors and assigns, notwithstanding the termination of this
Agreement.
USBFS shall indemnify and hold the Trusts, their trustees, officers,
employees and any other controlled person harmless from and against
any and all claims, demands, losses, expenses, and liabilities of any
and every nature (including reasonable attorneys' fees) that the
Trusts may sustain or incur or that may be asserted against the Trusts
by any person arising out of any action taken or omitted to be taken
by USBFS as a result of USBFS's refusal or failure to comply with the
terms of this Agreement, or from its bad faith, negligence, or willful
misconduct in the performance of its duties under this Agreement. This
indemnity shall be a continuing obligation of USBFS, its successors
and assigns, notwithstanding the termination of this Agreement.
Neither party to this Agreement shall be liable to the other party for
consequential, special or punitive damages under any provision of this
Agreement.
In the event of a mechanical breakdown or failure of communication or
power supplies beyond its control, USBFS shall take all reasonable
steps to minimize service interruptions for any period that such
interruption continues. USBFS will make every reasonable effort to
restore any lost or damaged data and correct any errors resulting from
such a breakdown at the expense of USBFS. USBFS agrees that it shall,
at all times, have reasonable contingency plans with appropriate
parties, making reasonable provision for emergency use of electrical
data processing equipment to the extent appropriate equipment is
available. Representatives of the Trusts shall be entitled to inspect
USBFS's premises and operating capabilities at any time during regular
business hours of USBFS, upon reasonable notice to USBFS. Moreover,
USBFS shall provide the Trusts, at such times as the Trusts may
reasonably require, copies of reports rendered by independent
accountants on the internal controls and procedures of USBFS relating
to the services provided by USBFS under this Agreement.
Notwithstanding the above, USBFS reserves the right to reprocess and
correct administrative errors at its own expense.
B. In order that the indemnification provisions contained in this Section
shall apply, it is understood that if in any case the indemnitor may
be asked to indemnify or hold the indemnitee harmless, the indemnitor
shall be fully and promptly advised of all pertinent facts concerning
the situation in question, and it is further understood that the
indemnitee will use all reasonable care to notify the indemnitor
promptly concerning any situation that presents or appears likely to
present the probability of a claim for indemnification. The indemnitor
shall have the option to defend the indemnitee against any claim that
may be the subject of this indemnification. In the event that the
indemnitor so elects, it will so notify the indemnitee and thereupon
the indemnitor shall take over complete defense of
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the claim, and the indemnitee shall in such situation initiate no
further legal or other expenses for which it shall seek
indemnification under this Section. The indemnitee shall in no case
confess any claim or make any compromise in any case in which the
indemnitor will be asked to indemnify the indemnitee except with the
indemnitor's prior written consent.
C. The indemnity and defense provisions set forth in this Section 9, and
in Exhibit C, Exhibit D and Exhibit E, if applicable, shall
indefinitely survive the termination and/or assignment of this
Agreement.
D. If USBFS is acting in another capacity for the Trusts pursuant to a
separate agreement, nothing herein shall be deemed to relieve USBFS of
any of its obligations in such other capacity.
10. DATA NECESSARY TO PERFORM SERVICES
The Trusts or their agent shall furnish to USBFS the data necessary to
perform the services described herein at such times and in such form as
mutually agreed upon.
11. PROPRIETARY AND CONFIDENTIAL INFORMATION
USBFS agrees on behalf of itself and its directors, officers, and employees
to treat confidentially and as proprietary information of the Trusts, all
records and other information relative to the Trusts and prior, present, or
potential shareholders of the Trusts (and clients of said shareholders),
and not to use such records and information for any purpose other than the
performance of its responsibilities and duties hereunder, except (i) after
prior notification to and approval in writing by the Trusts, which approval
shall not be unreasonably withheld and may not be withheld where USBFS may
be exposed to civil or criminal contempt proceedings for failure to comply,
(ii) when requested to divulge such information by duly constituted
authorities, or (iii) when so requested by the Trusts. Records and other
information which have become known to the public through no wrongful act
of USBFS or any of its employees, agents or representatives, and
information that was already in the possession of USBFS prior to receipt
thereof from the Trusts or their agent, shall not be subject to this
paragraph.
Further, USBFS will adhere to the privacy policies adopted by the Trusts
pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from
time to time. In this regard, USBFS shall have in place and maintain
physical, electronic and procedural safeguards reasonably designed to
protect the security, confidentiality and integrity of, and to prevent
unauthorized access to or use of, records and information relating to the
Trusts and its shareholders.
12. RECORDS
USBFS shall keep records relating to the services to be performed hereunder
in the form and manner, and for such period, as it may deem advisable and
is agreeable to the Trusts,
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but not inconsistent with the rules and regulations of appropriate
government authorities, in particular, Section 31 of the 1940 Act and the
rules thereunder. USBFS agrees that all such records prepared or maintained
by USBFS relating to the services to be performed by USBFS hereunder are
the property of the Trusts and will be preserved, maintained, and made
available in accordance with such applicable sections and rules of the 1940
Act and will be promptly surrendered to the Trusts or its designee on and
in accordance with its request.
13. COMPLIANCE WITH LAWS
The Trusts have and retain primary responsibility for all compliance
matters relating to the Fund, including but not limited to compliance with
the 1940 Act, the Internal Revenue Code of 1986, the Xxxxxxxx-Xxxxx Act of
2002, the USA Patriot Act of 2002 and the policies and limitations of the
Fund relating to its portfolio investments as set forth in its Prospectus
and statement of additional information. USBFS's services hereunder shall
not relieve the Trusts of their responsibilities for assuring such
compliance or the Board of Trustees oversight responsibility with respect
thereto.
14. TERM OF AGREEMENT; AMENDMENT
This Agreement shall become effective as of January 1, 2007 and will
continue in effect for a period of two years. Subsequent to the initial
two-year term, this Agreement may be terminated by either party upon giving
180 days prior written notice to the other party or such shorter period as
is mutually agreed upon by the parties. Notwithstanding the foregoing, this
Agreement may be terminated by any party upon the breach of the other party
of any material term of this Agreement if such breach is not cured within
15 days of notice of such breach to the breaching party. This Agreement may
not be amended or modified in any manner except by written agreement
executed by USBFS and the Trust and authorized or approved by the Board of
Trustees. The provisions of this Section 14 shall also apply to Exhibit C,
Exhibit D and Exhibit E.
15. DUTIES IN THE EVENT OF TERMINATION
In the event that, in connection with termination, a successor to any of
USBFS's duties or responsibilities hereunder is designated by the Trusts by
written notice to USBFS, USBFS will promptly, upon such termination and at
the expense of the Trusts, transfer to such successor all relevant books,
records, correspondence, and other data established or maintained by USBFS
under this Agreement in a form reasonably acceptable to the Trusts (if such
form differs from the form in which USBFS has maintained the same, the
Trusts shall pay any expenses associated with transferring the data to such
form), and will cooperate in the transfer of such duties and
responsibilities, including provision for assistance from USBFS's personnel
in the establishment of books, records, and other data by such successor.
If no such successor is designated, then such books, records and other data
shall be returned to the Trusts.
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16. EARLY TERMINATION
In the absence of any material breach of this Agreement, should the Trusts
elect to terminate this Agreement prior to the end of the term, the Trusts
agree to pay the following fees:
a. if terminated within one year of this Agreement, all monthly fees
through the life of the contract, including the rebate of any
negotiated discounts and conversion costs from the prior service
provider;
b. all fees associated with converting services to successor service
provider;
c. all fees associated with any record retention and/or tax
reporting obligations that may not be eliminated due to the
conversion to a successor service provider;
d. all out-of-pocket costs associated with a-c above.
17. ASSIGNMENT
This Agreement shall extend to and be binding upon the parties hereto and
their respective successors and assigns; provided, however, that this
Agreement shall not be assignable by the Trusts without the written consent
of USBFS, or by USBFS without the written consent of the Trusts,
accompanied by the authorization or approval of the Trusts' Board of
Trustees.
18. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the State
of Wisconsin, without regard to conflicts of law principles. To the extent
that the applicable laws of the State of Wisconsin, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act,
the latter shall control, and nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or order of the Securities and
Exchange Commission thereunder.
19. NO AGENCY RELATIONSHIP
Nothing herein contained shall be deemed to authorize or empower either
party to act as agent for the other party to this Agreement, or to conduct
business in the name, or for the account, of the other party to this
Agreement.
20. SERVICES NOT EXCLUSIVE
Nothing in this Agreement shall limit or restrict USBFS from providing
services to other parties that are similar or identical to some or all of
the services provided hereunder.
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21. INVALIDITY
Any provision of this Agreement which may be determined by competent
authority to be prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. In such case, the parties shall in good faith modify or
substitute such provision consistent with the original intent of the
parties.
22. NOTICES
Any notice required or permitted to be given by either party to the other
shall be in writing and shall be deemed to have been given on the date
delivered personally or by courier service, or three days after sent by
registered or certified mail, postage prepaid, return receipt requested, or
on the date sent and confirmed received by facsimile transmission to the
other party's address set forth below:
Notice to USBFS shall be sent to:
U.S. Bancorp Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Trusts shall be sent to:
Calamos Advisors LLC
0000 Xxxxxxx Xx
Xxxxxxxxxx, XXX 00000-0000
23. MULTIPLE ORIGINALS
This Agreement may be executed on two or more counterparts, each of which
when so executed shall be deemed to be an original, but such counterparts
shall together constitute but one and the same instrument.
24. ENTIRE AGREEMENT
This Agreement, together with any exhibits, attachments, appendices or
schedules expressly referenced herein, sets forth the sole and complete
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements relating thereto, whether written or oral,
between the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer on one or more counterparts as of the
date first above written.
CALAMOS INVESTMENT TRUST U.S. BANCORP FUND SERVICES, LLC
By: /s/ Xxxxxx X Xxxxx By: /s/ Xxx Xxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxx Xxxxx Name: Xxx Xxxxxx
Title: Treasurer Title: Senior Vice President
CALAMOS ADVISORS TRUST
By: /s/ Xxxxxx X Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
CALAMOS FINANCIAL SERVICES LLC (with
respect to Section 4 only)
By: /s/ Xxxxxx X Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: SVP & Director of Operations
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EXHIBIT A
TO THE
TRANSFER AGENT SERVICING AGREEMENT
FUND NAMES
Separate Series of Calamos Advisors Trust and Calamos Investment Trust
CALAMOS ADVISORS TRUST
----------------------
CALAMOS GROWTH & INCOME PORTFOLIO
CALAMOS INVESTMENT TRUST
------------------------
CALAMOS CONVERTIBLE FUND
CALAMOS GROWTH & INCOME FUND
CALAMOS MARKET NEUTRAL INCOME FUND
CALAMOS GROWTH FUND
CALAMOS GLOBAL GROWTH & INCOME FUND
CALAMOS HIGH YIELD FUND
CALAMOS VALUE FUND
CALAMOS BLUE CHIP FUND
CALAMOS INTERNATIONAL GROWTH FUND
CALAMOS MULTI-FUND BLEND
CALAMOS GLOBAL EQUITY FUND
15
EXHIBIT B
TO THE
TRANSFER AGENT SERVICING AGREEMENT
AS OF PROCESSING POLICY
USBFS will reimburse each Fund for any Net Material Loss that may exist on
the Fund's books and for which USBFS is responsible, at the end of each calendar
month. "Net Material Loss" shall be defined as any remaining loss, after netting
losses against any gains, which impacts a Fund's net asset value per share by
more than 1/2 cent. Gains and losses will be reflected on the Fund's daily share
sheet, and the Fund will be reimbursed for any net material loss on a monthly
basis. USBFS will reset the as of ledger each calendar month so that any losses
which do not exceed the materiality threshold of 1/2 cent will not be carried
forward to the next succeeding month. USBFS will notify the advisor to the Fund
on the daily share sheet of any losses for which the advisor may be held
accountable.
16
EXHIBIT C
TO THE
TRANSFER AGENT SERVICING AGREEMENT
INTERNET ACCESS SERVICES
1. SERVICES COVERED
USBFS shall make the following electronic, interactive and processing
services ("Electronic Services") available to the Trusts in accordance with
the terms of this Exhibit C:
A. Fan Web - Shareholder internet access to account information and
transaction capabilities. Internet service is connected directly to
the fund group's web site through a transparent hyperlink.
Shareholders can access, among other information, account information
and portfolio listings within a fund family, view transaction history,
and purchase additional shares through the Automated Clearing House
("ACH").
B. Vision Mutual Fund Gateway - Permits broker/dealers, financial
planners, and registered investment advisors to use a web-based system
to perform order and account inquiry, execute trades, print
applications, review prospectuses, and establish new accounts.
2. DUTIES AND RESPONSIBILITIES OF USBFS
USBFS shall:
A. Make Electronic Services available 24 hours a day, 7 days a week,
subject to scheduled maintenance and events outside of USBFS's
reasonable control. Unless an emergency is encountered, no routine
maintenance will occur during the hours of 8:00 a.m. to 3:00 p.m.
Central Time.
B. Provide installation services, which shall include review and approval
of the Trusts' network requirements, recommending method of
establishing (and, as applicable, cooperate with the Trusts to
implement and maintain) a hypertext link between the Electronic
Services site and the Trusts' web site(s) and testing the network
connectivity and performance.
C. Maintain and support the Electronic Services, which shall include
providing error corrections, minor enhancements and interim upgrades
to the Electronic Services that are made generally available to the
Electronic Services customers and providing help desk support to
provide assistance to the Trusts' employees and agents with their use
of the Electronic Services. Maintenance and support, as used herein,
shall not include (i) access to or use of any substantial added
17
functionality, new interfaces, new architecture, new platforms, new
versions or major development efforts, unless made generally available
by USBFS to the Electronic Services customers, as determined solely by
USBFS or (ii) maintenance of customized features.
D. Establish systems to guide, assist and permit End Users (as defined
below) who access the Electronic Services site from the Trust's web
site(s) to electronically perform inquiries and create and transmit
transaction requests to USBFS.
E. Address and mail, at the Trusts' expense, notification and promotional
mailings and other communications provided by the Trusts to
shareholders regarding the availability of the Electronic Services.
F. Issue to each shareholder, financial adviser or other person or entity
who desires to make inquiries concerning the Trusts or perform
transactions in accounts with the Trusts using any of the Electronic
Services (the "End User") a unique personal identification number
("PIN") for authentication purposes, which may be changed upon an End
User's reasonable request in accordance with policies to be determined
by USBFS and the Trusts. USBFS will require the End User to provide
his/her PIN in order to access the Electronic Services.
G. Prepare and process new account applications received through the
Electronic Services from shareholders determined by the Trusts to be
eligible for such services and in connection with such, the Trusts
agree as follows:
(1) to permit the establishment of shareholder bank account
information over the Internet in order to facilitate
purchase activity through ACH; and
(2) the Trusts shall be responsible for any resulting gain/loss
liability associated with the ACH process.
H. Provide the End User with a transaction confirmation number for each
completed purchase, redemption, or exchange of the Trusts' shares upon
completion of the transaction.
I. Utilize encryption and secure transport protocols intended to prevent
fraud and ensure confidentiality of End User accounts and
transactions. In no event shall USBFS use encryption weaker than a
40-bit RC4 Stream. USBFS will take reasonable actions, including
periodic scans of Internet interfaces and the Electronic Services, to
protect the Internet web site that provides the Electronic Services
and related network, against viruses, worms and other data corruption
or disabling devices, and unauthorized, fraudulent or illegal use, by
using appropriate virus detection and destructive software and by
adopting such other security procedures as may be necessary.
J. Monitor the telephone lines involved in providing the Electronic
Services and inform the Trusts promptly of any malfunctions, problems,
errors or service
18
interruptions with respect to the Electronic Services of which USBFS
becomes aware.
K. Exercise reasonable efforts to maintain all on-screen disclaimers and
copyright, trademark and service xxxx notifications, if any, provided
by the Trusts to USBFS in writing from time to time, and all "point
and click" features of the Electronic Services relating to shareholder
acknowledgment and acceptance of such disclaimers and notifications.
L. Establish and provide to the Trusts written procedures, which may be
amended from time to time by USBFS with the written consent of the
Trusts, regarding End User access to the Electronic Services. Such
written procedures shall establish security standards for the
Electronic Services, including, without limitation:
(1) Encryption/secure transport protocols.
(2) End User lockout standards (e.g., lockout after three
unsuccessful attempts to gain access to the Electronic Services).
(3) PIN issuance and reissuance standards.
(4) Access standards, including limits on access to End Users whose
accounts are coded for privilege.
(5) Automatic logoff standards (e.g., if the session is inactive for
longer than 15 minutes).
M. Provide the Trusts with daily reports of transactions listing all
purchases or transfers made by each End User separately. USBFS shall
also furnish the Trusts with monthly reports summarizing shareholder
inquiry and transaction activity without listing all transactions.
N. Annually engage a third party to audit its internal controls for the
Electronic Services and compliance with all guidelines for the
Electronic Services included herein and provide the Trusts with a copy
of the auditor's report promptly.
3. DUTIES AND RESPONSIBILITIES OF THE TRUSTS
The Trusts assume exclusive responsibility for the consequences of any
instructions they may give to USBFS, for the Trusts' or End Users' failure
to properly access the Electronic Services in the manner prescribed by
USBFS, and for the Trusts' failure to supply accurate information to USBFS.
Also, the Trusts shall:
A. Revise and update the applicable prospectus(es) and other pertinent
materials, such as user agreements with End Users, to include the
appropriate consents,
19
notices and disclosures for Electronic Services, including disclaimers
and information reasonably requested by USBFS.
B. Be responsible for designing, developing and maintaining one or more
web sites for the Trusts through which End Users may access the
Electronic Services, including provision of software necessary for
access to the Internet, which must be acquired from a third-party
vendor. Such web sites shall have the functionality necessary to
facilitate, implement and maintain the hypertext links to the
Electronic Services and the various inquiry and transaction web pages.
The Trusts shall provide USBFS with the name of the host of the
Trusts' web site server and shall notify USBFS of any change to the
Trusts' web site server host.
C. Provide USBFS with such information and/or access to the Trusts' web
site(s) as is necessary for USBFS to provide the Electronic Services
to End Users.
D. Promptly notify USBFS of any problems or errors with the applicable
Electronic Services of which the Trusts become aware or any changes in
policies or procedures of the Trusts requiring changes to the
Electronic Services.
4. ADDITIONAL REPRESENTATION AND WARRANTY
The parties hereby warrant that neither party shall knowingly insert into
any interface, other software, or other program provided by such party to
the other hereunder, or accessible on the Electronic Services site or
Trusts' web site(s), as the case may be, any "back door," "time bomb,"
"Trojan Horse," "worm," "drop dead device," "virus" or other computer
software code or routines or hardware components designed to disable,
damage or impair the operation of any system, program or operation
hereunder. For failure to comply with this warranty, the non-complying
party shall immediately replace all copies of the affected work product,
system or software. All costs incurred with replacement including, but not
limited to, cost of media, shipping, deliveries and installation, shall be
borne by such party.
5. PROPRIETARY RIGHTS
A. Each party acknowledges and agrees that it obtains no rights in or to
any of the software, hardware, processes, trade secrets, proprietary
information or distribution and communication networks of the other
hereunder. Any software, interfaces or other programs a party provides
to the other hereunder shall be used by such receiving party only in
accordance with the provisions of this Exhibit C. Any interfaces,
other software or other programs developed by one party shall not be
used directly or indirectly by or for the other party or any of its
affiliates to connect such receiving party or any affiliate to any
other person, without the first party's prior written approval, which
it may give or withhold in its sole discretion. Except in the normal
course of business and in conformity with Federal copyright law or
with the other party's consent, neither party nor any of its
affiliates shall disclose, use, copy, decompile or reverse engineer
any software or other programs provided to such party by the other in
connection herewith.
20
B. The Trusts' web site(s) and the Electronic Services site may contain
certain intellectual property, including, but not limited to, rights
in copyrighted works, trademarks and trade dress that is the property
of the other party. Each party retains all rights in such intellectual
property that may reside on the other party's web site, not including
any intellectual property provided by or otherwise obtained from such
other party. To the extent the intellectual property of one party is
cached to expedite communication, such party grants to the other a
limited, non-exclusive, non-transferable license to such intellectual
property for a period of time no longer than that reasonably necessary
for the communication. To the extent that the intellectual property of
one party is duplicated within the other party's web site to replicate
the "look and feel," "trade dress" or other aspect of the appearance
or functionality of the first site, that party grants to the other a
limited, non-exclusive, non-transferable license to such intellectual
property for the period during which this Exhibit C is in effect. This
license is limited to the intellectual property needed to replicate
the appearance of the first site and does not extend to any other
intellectual property owned by the owner of the first site. Each party
warrants that it has sufficient right, title and interest in and to
its web site and its intellectual property to enter into these
obligations, and that to its knowledge, the license hereby granted to
the other party does not and will not infringe on any U.S. patent,
copyright or other proprietary right of a third party.
C. Each party agrees that the nonbreaching party would not have an
adequate remedy at law in the event of the other party's breach or
threatened breach of its obligations under this Section of this
Exhibit C and that the nonbreaching party would suffer irreparable
injury and damage as a result of any such breach. Accordingly, in the
event either party breaches or threatens to breach the obligations set
forth in this Section of this Exhibit C in addition to and not in lieu
of any legal or other remedies a party may pursue hereunder or under
applicable law, each party hereby consents to the granting of
equitable relief (including the issuance of a temporary restraining
order, preliminary injunction or permanent injunction) against it by a
court of competent jurisdiction, without the necessity of proving
actual damages or posting any bond or other security therefor,
prohibiting any such breach or threatened breach. In any proceeding
upon a motion for such equitable relief, a party's ability to answer
in damages shall not be interposed as a defense to the granting of
such equitable relief. The provisions of this Section relating to
equitable relief shall survive termination of the provision of
services set forth in this Exhibit C.
6. COMPENSATION
USBFS shall be compensated for providing the Electronic Services in
accordance with the fee schedule set forth in Appendix 1 to this Exhibit C
(as amended from time to time).
7. ADDITIONAL INDEMNIFICATION; LIMITATION OF LIABILITY
A. Subject to Section 2(A), USBFS CANNOT AND DOES NOT GUARANTEE
AVAILABILITY OF THE ELECTRONIC SERVICES. Accordingly, USBFS's
21
sole liability to the Trusts or any third party (including End Users)
for any claims, notwithstanding the form of such claims (e.g.,
contract, negligence, or otherwise), arising out of the delay of or
interruption in the Electronic Services to be provided by USBFS
hereunder shall be to use its best reasonable efforts to commence or
resume the Electronic Services as promptly as is reasonably possible.
B. USBFS shall, at its sole cost and expense, defend, indemnify, and hold
harmless the Trusts and its trustees, officers and employees from and
against any and all claims, demands, losses, expenses and liabilities
of any and every nature (including reasonable attorneys' fees) arising
out of or relating to (a) any infringement, or claim of infringement,
of any United States patent, trademark, copyright, trade secret, or
other proprietary rights based on the use or potential use of the
Electronic Services and (b) the provision of the Trust Files (as
defined below) or Confidential Information (as defined below) to a
person other than a person to whom such information may be properly
disclosed hereunder.
C. If an injunction is issued against the Trusts' use of the Electronic
Services by reason of infringement of a patent, copyright, trademark,
or other proprietary rights of a third party, USBFS shall, at its own
option and expense, either (i) procure for the Trusts the right to
continue to use the Electronic Services on substantially the same
terms and conditions as specified hereunder, or (ii) after
notification to the Trusts, replace or modify the Electronic Services
so that they become non-infringing, provided that, in the Trusts'
judgment, such replacement or modification does not materially and
adversely affect the performance of the Electronic Services or
significantly lessen their utility to the Trusts. If in the Trusts'
judgment, such replacement or modification does materially adversely
affect the performance of the Electronic Services or significantly
lessen their utility to the Trusts, the Trusts may terminate all
rights and responsibilities under this Exhibit C immediately on
written notice to USBFS.
D. Because the ability of USBFS to deliver Electronic Services is
dependent upon the Internet and equipment, software, systems, data and
services provided by various telecommunications carriers, equipment
manufacturers, firewall providers and encryption system developers and
other vendors and third parties, USBFS shall not be liable for delays
or failures to perform its obligations hereunder to the extent that
such delays or failures are attributable to circumstances beyond its
reasonable control which interfere with the delivery of the Electronic
Services by means of the Internet or any of the equipment, software
and services which support the Internet provided by such third
parties. USBFS shall also not be liable for the actions or omissions
of any third party wrongdoers (i.e., hackers not employed by USBFS or
its affiliates) or of any third parties involved in the Electronic
Services and shall not be liable for the selection of any such third
party, unless USBFS selected the third party in bad faith or in a
grossly negligent manner.
E. USBFS shall not be responsible for the accuracy of input material from
End Users nor the resultant output derived from inaccurate input. The
accuracy of input and
22
output shall be judged as received at USBFS's data center as
determined by the records maintained by USBFS.
F. Notwithstanding anything to the contrary contained herein, USBFS shall
not be obligated to ensure or verify the accuracy or actual receipt,
or the transmission, of any data or information contained in any
transaction via the Electronic Services or the consummation of any
inquiry or transaction request not actually reviewed by USBFS.
8. FILE SECURITY AND RETENTION; CONFIDENTIALITY
A. USBFS and its agents will provide reasonable security provisions to
ensure that unauthorized third parties do not have access to the
Trusts' data bases, files, and other information provided by the
Trusts to USBFS for use with the Electronic Services, the names of End
Users or End User transaction or account data (collectively, "Trust
Files"). USBFS's security provisions with respect to the Electronic
Services, the Trusts' web site(s) and the Trust Files will be no less
protected than USBFS's security provisions with respect to its own
proprietary information. USBFS agrees that any and all Trust Files
maintained by USBFS for the Trusts hereunder shall be available for
inspection by the Trusts' regulatory authorities during regular
business hours, upon reasonable prior written notice to USBFS, and
will be maintained and retained in accordance with applicable
requirements of the 1940 Act. USBFS will take such actions as are
necessary to protect the intellectual property contained within the
Trusts' web site(s) or any software, written materials, or pictorial
materials describing or creating the Trusts' web site(s), including
all interface designs or specifications. USBFS will take such actions
as are reasonably necessary to protect all rights to the source code
and interface of the Trusts' web site(s). In addition, USBFS will not
use, or permit the use of, names of End Users for the purpose of
soliciting any business, product, or service whatsoever except where
the communication is necessary and appropriate for USBFS's delivery of
the Electronic Services.
B. USBFS shall treat as confidential and not disclose or otherwise make
available any of the Trusts' lists, information, trade secrets,
processes, proprietary data, information or documentation
(collectively, the "Confidential Information"), in any form, to any
person other than agents, employees or consultants of USBFS. USBFS
will instruct its agents, employees and consultants who have access to
the Confidential Information to keep such information confidential by
using the same care and discretion that USBFS uses with respect to its
own confidential property and trade secrets. Upon termination of the
rights and responsibilities described in this Exhibit C for any reason
and upon the Trusts' request, USBFS shall return to the Trusts, or
destroy and certify that it has destroyed, any and all copies of the
Confidential Information which are in its possession.
C. Notwithstanding the above, USBFS will not have an obligation of
confidentiality under this Section with regard to information that (1)
was known to it prior to disclosure hereunder, (2) is or becomes
publicly available other than as a result of a breach hereof, (3) is
disclosed to it by a third party not subject to a duty of
23
confidentiality, or (4) is required to be disclosed under law or by
order of court or governmental agency.
9. WARRANTIES
EXCEPT AS OTHERWISE PROVIDED IN THIS EXHIBIT, THE ELECTRONIC SERVICES ARE
PROVIDED BY USBFS "AS IS" ON AN "AS-AVAILABLE" BASIS WITHOUT WARRANTY OF
ANY KIND, AND USBFS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
WITH RESPECT TO THE ELECTRONIC SERVICES INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
10. DUTIES IN THE EVENT OF TERMINATION
In the event of termination of the services provided pursuant to this
Exhibit C, (i) End Users will no longer be able to access the Electronic
Services and (ii) the Trusts will return all codes, system access
mechanisms, programs, manuals and other written information provided to it
by USBFS in connection with the Electronic Services provided hereunder, and
shall destroy or erase all such information on any diskettes or other
storage medium.
24
APPENDIX 1 TO EXHIBIT C
TRANSFER AGENT SERVICING AGREEMENT
SEE FEES ON EXHIBIT E
25
EXHIBIT D
TO THE
TRANSFER AGENT SERVICING AGREEMENT
FAN MAIL SERVICES
1. CERTAIN DEFINITIONS
Whenever used in this Exhibit D, the following words and phrases shall have
the meanings set forth below unless the context otherwise requires:
A. "FAN Mail(R)" means the system designed, developed and instituted by
DST Systems, Inc. ("DST") known as "Financial Adviser Network
Mail(TM)" or "FAN Mail," which enables DST to make available data from
DST's TA2000(R) mutual fund record-keeping systems and data provided
to DST in the format specified by DST from other mutual fund
record-keeping systems or record-keeping systems maintained by third
parties for other Financial Products through the Internet to
authorized Users.
B. "FAN Mail Services" means the services originally provided by DST
using FAN Mail, the Internet and other software equipment and systems
provided by DST, telecommunications carriers, firewall providers and
other third parties, as described more fully in Section 3 of this
Exhibit D, to which USBFS subscribes and is authorized to resell to
its customers pursuant to a separate agreement with DST.
C. "Financial Products" means mutual funds, annuity, variable annuity or
variable universal life contracts or real estate investment trusts or
limited partnerships or other similar financial products.
D. "User(s)" means the persons to whom data is made available through FAN
Mail Services, including specified authorized agents of record owners
of the Trust's shares, such as brokers, registered financial advisers,
financial planners and other financial intermediaries, and, when
requested by the Trusts, the distributors of the Trusts' shares.
2. SERVICES COVERED
USBFS shall allow access to FAN Mail Services by authorized Users on behalf
of the Trusts in accordance with the terms of this Exhibit D. By entering
into the agreement with the Trusts to provide services pursuant to this
Exhibit D, USBFS hereby consents to extraction of Files, as defined below,
from TA2000 and instructs DST to extract Files from TA2000 for authorized
Users.
3. DUTIES AND RESPONSIBILITIES OF USBFS
USBFS shall:
A. Receive data ("Files") from DST's TA2000 transfer agent record-keeping
system and address the Files to Users who have completed the
enrollment process for FAN Mail Services required by DST and make the
Files available to such Users. All Files will be made available only
through the Internet via a Hypertext
26
Transfer Protocol Secure site (the "HTTPS Server"). USBFS will provide
to each User a user identification ("User ID") and a password (the
"Password") and shall permit access to the Files on the HTTPS Server
associated with a given User ID and Password whenever the appropriate
User ID and Password is received by the HTTPS Server. Each User is
responsible for accessing the HTTPS Server and retrieving such User's
Files. USBFS hereby reserves the right to change the method of
delivery for the FAN Mail Services or to develop an internal delivery
system.
B. Make available to Users the Files included in Appendix 1 to this
Exhibit D. USBFS may from time to time and upon notice to the Trusts
add and/or delete Files from Appendix 1.
C. Perform the following administrative functions through DST necessary
to establish the link between the Files and the User's HTTPS
directory: maintain a data base that contains the User's name,
address, electronic mailing address, 30 day history of Files made
available (actual back-up of information is not maintained for the
Trusts) and a list of Users by dealer/adviser number; provide billing
to the Trust; provide daily reports to the Trust; reasonably assist
the Trust and Users in establishing FAN Mail links; monitor
transmissions and provide ongoing technical support for FAN Mail; and
maintain a web site facilitating enrollment of new Users.
D. Ensure that the HTTPS Server is accessible via the Internet. Through
DST, provide telephone support to the Trusts and Users with respect to
the use of FAN Mail, use reasonable efforts to resolve problems, and
establish and maintain the HTTPS Server so it is available for contact
by financial planning software vendors.
E. If additional FAN Mail Services become available during the term of
this Agreement, USBFS shall offer the additional services to the
Trusts. To the extent the Trusts elect to receive any or all of such
additional services, this Exhibit D shall be amended.
F. Make available, either directly or indirectly, all computers,
telecommunications equipment and other equipment and software
reasonably necessary to make FAN Mail Services available for use by
the Trusts and their affiliated distributors, when applicable.
4. DUTIES AND RESPONSIBILITIES OF THE TRUSTS
The Trusts shall:
A. Comply, and instruct Users to comply, with all the User enrollment and
authorization procedures and FAN Mail Services security procedures
required by DST.
27
B. Transmit Files daily from the Trusts' record-keeping systems
maintained by third parties to DST in formats specified from time to
time by DST, if applicable.
C. Obtain and pay for connectivity to the HTTPS Server.
D. Have the proper equipment and software to enable Users to access the
HTTPS Server and download the Files and obtain all related
maintenance, including support in the event of download problems.
5. SYSTEM MAINTENANCE
The Trusts understand that USBFS and DST will have to perform periodic
maintenance to the hardware and software used to provide FAN Mail Services,
which may cause temporary service interruptions. USBFS shall notify the
Trusts of all planned outages of its own hardware and software and, to the
extent possible, will perform any necessary maintenance during non-business
hours.
6. ADDITIONAL REPRESENTATION AND WARRANTY
The parties hereby warrant that neither party shall knowingly insert into
any interface, other software, or other program provided by such party to
the other hereunder, or accessible on the FAN Mail Services site or Trusts'
web site(s), as the case may be, any "back door," "time bomb," "Trojan
Horse," "worm," "drop dead device," "virus" or other computer software code
or routines or hardware components designed to disable, damage or impair
the operation of any system, program or operation hereunder. For failure to
comply with this warranty, the non-complying party shall immediately
replace all copies of the affected work product, system or software. All
costs incurred with replacement including, but not limited to, cost of
media, shipping, deliveries and installation, shall be borne by such party.
7. PROPRIETARY RIGHTS
A. The Trusts acknowledge and agree that by virtue of subscribing to FAN
Mail Services through USBFS, they shall not obtain any rights in or to
any of the software, templates, screen and file formats, interface
protocols, formats and development tools and instructions, hardware,
processes, trade secrets, instruction manuals, enrollment
authorization, authentication and other business processes,
proprietary information or distribution and communication networks
used to provide FAN Mail Services owned by DST and licensed to USBFS.
Any interfaces and software provided to the Trusts in order to provide
connectivity to FAN Mail through USBFS shall be used by the Trusts and
Users only for the period during which this Exhibit D is in effect and
only in accordance with the terms of this Exhibit D, and shall not be
used by the Trusts to provide connectivity to or through any other
system or person without USBFS's prior written approval. The Trusts
shall not copy, decompile or reverse engineer any software or programs
provided to the Trusts hereunder. The Trusts also agree not to take
any action which would mask, delete or otherwise alter any on-screen
disclaimers and copyright, trademark and service xxxx notifications,
or any "point
28
and click" features relating to User acknowledgment and acceptance of
such disclaimers and notifications.
B. The FAN Mail Services site may contain certain intellectual property,
including, but not limited to, rights in copyrighted works, trademarks
and trade dress that is the property of the Trusts. The Trusts retain
all rights in such intellectual property that may reside on the FAN
Mail Services site, not including any intellectual property provided
by or otherwise obtained from USBFS. To the extent the intellectual
property of the Trusts are cached to expedite communication, the
Trusts grant to USBFS a limited, non-exclusive, non-transferable
license to such intellectual property for a period of time no longer
than that reasonably necessary for the communication. To the extent
that the intellectual property of the Trusts are duplicated within the
FAN Mail Services site to replicate the "look and feel," "trade dress"
or other aspect of the appearance or functionality of the Trusts' web
site(s), the Trusts grant to USBFS a limited, non-exclusive,
non-transferable license to such intellectual property for the period
during which this Exhibit D is in effect. This license is limited to
the intellectual property needed to replicate the appearance of the
Trusts' web site(s) and does not extend to any other intellectual
property owned by the Trusts. The Trusts warrant that they have
sufficient right, title and interest in and to their web site(s) and
their intellectual property to enter into these obligations, and that
to their knowledge, the license hereby granted to USBFS does not and
will not infringe on any U.S. patent, copyright or other proprietary
right of a third party.
C. Each party agrees that the nonbreaching party would not have an
adequate remedy at law in the event of the other party's breach or
threatened breach of its obligations under this Section of this
Exhibit D and that the nonbreaching party would suffer irreparable
injury and damage as a result of any such breach. Accordingly, in the
event either party breaches or threatens to breach the obligations set
forth in this Section of this Exhibit D, in addition to and not in
lieu of any legal or other remedies a party may pursue hereunder or
under applicable law, each party hereby consents to the granting of
equitable relief (including the issuance of a temporary restraining
order, preliminary injunction or permanent injunction) against it by a
court of competent jurisdiction, without the necessity of proving
actual damages or posting any bond or other security therefor,
prohibiting any such breach or threatened breach. In any proceeding
upon a motion for such equitable relief, a party's ability to answer
in damages shall not be interposed as a defense to the granting of
such equitable relief. The provisions of this Section relating to
equitable relief shall survive termination of the provision of
services set forth in this Exhibit D.
8. COMPENSATION
USBFS shall be compensated for providing FAN Mail Services in accordance
with the fee schedule set forth in Appendix 1 to this Exhibit D (as amended
from time to time).
29
9. ADDITIONAL INDEMNIFICATION; LIMITATION OF LIABILITY
A. USBFS CANNOT AND DOES NOT GUARANTEE AVAILABILITY OF THE FAN MAIL
SERVICES. Accordingly, USBFS's sole liability to the Trusts or any
third party (including Users) for any claims, notwithstanding the form
of such claims (e.g., contract, negligence, or otherwise), arising out
of the delay of or interruption in FAN Mail Services to be provided by
USBFS hereunder shall be to use its best reasonable efforts to
commence or resume FAN Mail Services as promptly as is reasonably
possible.
B. USBFS shall, at its sole cost and expense, defend, indemnify, and hold
harmless the Trusts and its trustees, officers and employees from and
against any and all claims, demands, losses, expenses, damages or
liabilities of any and every nature, including reasonable attorneys'
fees, arising out of or relating to (a) any infringement, or claim of
infringement, of any United States patent, trademark, copyright, trade
secret, or other proprietary rights based on the use or potential use
of FAN Mail Services and (b) the provision of the Trust Files (as
defined below) or Confidential Information (as defined below) to a
person other than a person to whom such information may be properly
disclosed hereunder.
C. If an injunction is issued against the Trusts' and Users' use of FAN
Mail Services by reason of infringement of a patent, copyright,
trademark, or other proprietary rights of a third party, USBFS shall,
at its own option and expense, either (i) procure for the Trusts and
Users the right to continue to use FAN Mail Services on substantially
the same terms and conditions as specified hereunder, or (ii) after
notification to the Trusts, replace or modify FAN Mail Services so
that they become non-infringing, provided that, in the Trusts'
judgment, such replacement or modification does not materially and
adversely affect the performance of FAN Mail Services or significantly
lessen their utility to the Trusts and Users. If in the Trusts'
judgment, such replacement or modification does materially adversely
affect the performance of FAN Mail Services or significantly lessen
their utility to the Trusts and Users, the Trusts may terminate all
rights and responsibilities under this Exhibit D immediately on
written notice to USBFS.
D. Because the ability of USBFS to deliver FAN Mail Services is dependent
upon the Internet and equipment, software, systems, data and services
provided by various telecommunications carriers, equipment
manufacturers, firewall providers and encryption system developers and
other vendors and third parties, including DST, USBFS shall not be
liable for delays or failures to perform its obligations hereunder to
the extent such delays or failures are attributable to circumstances
beyond its reasonable control which interfere with the delivery of FAN
Mail Services by means of the Internet or any of the equipment,
software and services which support the Internet provided by such
third parties. USBFS shall also not be liable for the actions or
omissions of any third party wrongdoers (i.e., hackers not employed by
USBFS or its affiliates) or of any third parties involved with FAN
Mail Services.
30
E. The Trusts and Users are responsible for verifying the accuracy and
receipt of all data or information made available via FAN Mail
Services. The Trusts are responsible for advising Users of their
responsibilities to promptly notify the Trusts' transfer agent of any
errors or inaccuracies relating to data or other information made
available via FAN Mail Services with respect to the Trusts'
shareholders.
F. USBFS shall not be responsible for the accuracy of input material from
Users and the Trusts' record-keeping systems maintained by third
parties nor the resultant output derived from inaccurate input. The
accuracy of input and output shall be judged as received at USBFS's
data center as determined by the records maintained by USBFS.
10. FILE SECURITY AND RETENTION; CONFIDENTIALITY
A. USBFS and its agents will provide reasonable security provisions to
ensure that unauthorized third parties do not have access to the
Trusts' data bases, files, and other information provided by the
Trusts to USBFS for use with FAN Mail Services, the Files included in
Appendix 1 to this Exhibit D or the names of Users (collectively,
"Trust Files"). USBFS's security provisions with respect to FAN Mail
Services and the Trust Files will be no less protected than USBFS's
security provisions with respect to its own proprietary information.
USBFS agrees that any and all Trust Files maintained by USBFS for the
Trust hereunder shall be available for inspection by the Trusts'
regulatory authorities during regular business hours, upon reasonable
prior written notice to USBFS, and will be maintained and retained in
accordance with applicable requirements of the 1940 Act. In addition,
USBFS will not use, or permit the use of, names of Users for the
purpose of soliciting any business, product, or service whatsoever
except where the communication is necessary and appropriate for
USBFS's delivery of FAN Mail Services.
B. USBFS shall treat as confidential and not disclose or otherwise make
available any of the Trusts' lists, information, trade secrets,
processes, proprietary data, information or documentation
(collectively, the "Confidential Information"), in any form, to any
person other than agents, employees or consultants of USBFS. USBFS
will instruct its agents, employees and consultants who have access to
the Confidential Information to keep such information confidential by
using the same care and discretion that USBFS uses with respect to its
own confidential property and trade secrets. Upon termination of the
rights and responsibilities described in this Exhibit D for any reason
and upon the Trusts' request, USBFS shall return to the Trusts, or
destroy and certify that it has destroyed, any and all copies of the
Confidential Information which are in its possession.
C. Notwithstanding the above, USBFS will not have an obligation of
confidentiality under this Section with regard to information that (1)
was known to it prior to disclosure hereunder, (2) is or becomes
publicly available other than as a result of a breach hereof, (3) is
disclosed to it by a third party not subject to a duty of
31
confidentiality, or (4) is required to be disclosed under law or by
order of court or governmental agency.
11. WARRANTIES
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS EXHIBIT, FAN MAIL SERVICES
AND ALL EQUIPMENT, SOFTWARE AND SYSTEMS DESCRIBED IN THIS EXHIBIT ARE
PROVIDED "AS IS" ON AN "AS AVAILABLE" BASIS, AND USBFS HEREBY SPECIFICALLY
DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
REGARDING FAN MAIL SERVICES PROVIDED HEREUNDER, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
12. DUTIES IN THE EVENT OF TERMINATION
In the event of termination of the services provided pursuant to this
Exhibit D, (i) the Trusts and Users will immediately end their access to
FAN Mail Services and (ii) the parties will return to one another any
confidential or proprietary information or materials of the other in their
possession and will destroy or erase all such information on any diskettes
or other storage medium.
32
APPENDIX 1
TO
EXHIBIT D
TO THE
TRANSFER AGENT SERVICING AGREEMENT
FILES AND FAN MAIL FEE SCHEDULE
I. FILES
The following Files shall be provided to Users as required by Exhibit D:
ACCOUNT POSITION FILE
DIRECT FINANCIAL ACTIVITY FILE
ACCOUNT MASTER POSITION FILE
New ACCOUNT ACTIVITY FILE
NON-FINANCIAL ACTIVITY FILE
DISTRIBUTION ACTIVITY FILE
DAILY PRICE FILE
II. FEES
[SEE EXHIBIT E]
33
EXHIBIT E TO THE
TRANSFER AGENT SERVICING AGREEMENT - FEE SCHEDULE
CALAMOS INVESTMENT TRUST AND CALAMOS ADVISORS TRUST
BEGINNING JANUARY 1,2007
Annual Fee Per Shareholder Account
Direct Open Accounts
$15.00 per no-load account
$16.00 per load account - first 25,000 accounts
$14.00 per load account - next 75,000 accounts
$14.00 per load account - balance of accounts
$21.00 per shareholder account - money market
Direct Closed Accounts
$5.00 per account
Minimum annual fee: WAIVE
$28,000 for the first fund or class
$10,000 each additional fund or class
CUSIP fee: WAIVE
$2,400 per CUSIP
NSCC Network Level 3 Accounts
$16.00 per account - first 40,000 accounts
$12.00 per account - next 60,000 accounts
$10.00 per account - next 100,000 accounts
$ 8.00 per account - next 150,000 accounts
$ 5.00 per account - next 400,000accounts
$ 6.50 per account - balance of accounts
NSCC Network Level 3 Closed Accounts
$5.00 per account - first 25,000 accounts
$2.50 per account - balance of accounts
Plus Fund Group Asset Fee (monthly assets calculated on average daily net
assets)
.75 basis point per year - First $15.0 billion
.5 basis point per year - Next $5.0 billion
.25 basis point per year - Next $5.0 billion
.15 basis point per year - Balance of fund group assets
- Monthly Assets calculated on Avg Daily Net Assets
34
CALAMOS INVESTMENT TRUST AND CALAMOS ADVISORS TRUST
Exhibit E - Fees (continued)
Telephone Calls - $1.00 per call - WAIVE
Draft Check Processing - $ 1.00 per draft - WAIVE
Daily Valuation Trades - $6.75 per trade - WAIVE
ACH Shareholder Services - WAIVE
Plus Out-of-Pocket Expenses, including but not limited to:
Telephone - toll free lines
Retention of records
Postage
Microfilm/fiche of records
Programming, Special reports
Stationery/envelopes
Insurance
NSCC charges
FANWEB activity fees
Vision ID's and activity fees
Proxies
All other out-of-pocket expenses
Qualified Plan Fees (Billed to Investors) WAIVE
Annual maintenance fee per account $15.00 / account (Cap at $30.00
per SSN)
Xxxxxxxxx Education Savings account $15.00 / account (Cap at $30.00 /
per SSN)
Distribution to participant $25.00 / transaction (Exclusive of
SWP)
Refund of excess contribution $25.00 / transaction
Additional Shareholder Fees (Billed to Investors)
Any outgoing wire transfer $15.00 / wire
Telephone exchange $ 5.00 / exch. WAIVE
Transfer to successor trustee $25.00 / transfer
Return check fee $25.00 / item
Stop payment $25.00 / stop (Liquidation,
dividend, draft check)
Research fee $ 5.00 / item (For requested items
of the second calendar
year [or previous] to the request)
(Cap at $25.00)
WAIVE 12b-l Payments $6,000 per year for all funds
AML Fees:
Annual Base Fee $5,000
New domestic accounts $ 1.00 per account
New foreign accounts $ 2.00 per account
Shareholder verifications $ .25 per item
35
CALAMOS INVESTMENT TRUST AND CALAMOS ADVISORS TRUST
Exhibit E - Fees (continued)
WAIVE File Transfer $ 160/month and $.01/record
Shareholder System Select Request $ 300.00 / request
Systems Development/Programming $ 150.00 / hour
Fund Group Addition $2,000.00 / fund group
Fund Additions $1,500.00 / fund or class
Lost Shareholder Search (Xxxxx Tracers) $ 5.00 / search
WAIVE - FANWEB base fee, FAN MAIL, AND EB2B FEES
Fees and out-of-pocket expenses are billed to the fund monthly.
36
Exhibit F
Administrative Services Agreement dated August 1, 2005 by and between Calamos
Financial Services LLC and U.S. Bancorp Fund Services, LLC
37
