EXHIBIT (h)(13)
Amended and Restated
Financial Accounting Services Agreement
THIS AGREEMENT is made as of ____, 2004 among the parties listed in
Schedule I, as it may be amended from time to time (singularly "Party" and
collectively "Parties") and Calamos Advisors LLC, a Delaware limited liability
company ("Calamos").
Recitals
A. Each Party is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as a management investment company;
X. Xxxxxxx has the resources to provide accounting services to
investment companies; and
C. The Parties desire to retain Calamos to provide certain accounting
services.
Agreement
The parties agree as follows:
1. APPOINTMENT OF CALAMOS AS FUND ACCOUNTANT
Each Party appoints Calamos as one of its respective accountants on the
terms and conditions set forth in this Agreement, and Calamos accepts such
appointment and agrees to perform the services and duties set forth in
this Agreement.
2. SERVICES AND DUTIES OF CALAMOS
Calamos shall provide the following accounting services to each Party,
including but not limited to:
A. Manage the Party's expenses and expense payment processing.
B. Monitor the calculation of expense accrual amounts for each Party
and make any necessary modifications.
C. Coordinate any expense reimbursement calculations and payment.
D. Calculate yields on a Party in accordance with rules and regulations
of the Securities and Exchange Commission (the "SEC").
E. Calculate net investment income dividends and capital gain
distributions.
(1) Calculate, track and report tax adjustments on all assets of
each Party, including but not limited to contingent debt and
preferred trust obligations.
(2) Prepare excise tax and fiscal year distribution schedules.
(3) Prepare tax information required for financial statement
footnotes.
(4) Prepare state and federal income tax returns.
(5) Prepare specialized calculations of amortization on
convertible securities.
(6) Prepare year-end dividend disclosure information.
(7) Coordinate the audits for each Fund.
(8) Prepare financial reporting statements for each Fund.
(9) Prepare regulatory filing.
(10) Calculate asset coverage test for CHI, CHY, CSQ and CGO
(11) Prepare and distribute press releases for CHI CHY, CSQ and
CGO.
F. Calculate trustee deferred compensation plan accruals and
valuations.
G. Prepare Form 1099 information statements for Board members and
service providers.
3. COMPENSATION
Each Party shall compensate Calamos for providing the services set forth
in this Agreement in accordance with the fee schedule set forth on Exhibit
A hereto (as amended from time to time by written agreement of the
parties). Each Party shall pay all 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. Notwithstanding anything
to the contrary, amounts owed by a Party to Calamos shall only be paid out
of the assets and property of the particular Party involved.
4. INDEMNIFICATION; LIMITATION OF LIABILITY
X. Xxxxxxx shall exercise reasonable care in the performance of its
duties under this Agreement. Calamos shall not be liable for any
error of judgment or mistake of law or for any loss suffered by a
Party in connection with matters to which this Agreement relates,
including losses resulting from mechanical breakdowns or the failure
of communication or power supplies beyond Calamos' control, except a
loss arising out of or relating to Calamos' refusal or failure to
comply with the terms of this Agreement or from bad faith,
negligence, or willful misconduct on its part in the performance of
its duties under this Agreement. Notwithstanding any other provision
of this Agreement, if Calamos has exercised reasonable care in the
performance of its duties under this Agreement, each Party shall
indemnify and hold harmless Calamos, its directors, officers,
employees and agents from and against any and all claims, demands,
losses, expenses, and liabilities of any and
2
every nature (including reasonable attorneys' fees) that Calamos,
its directors, officers, employees and agents may sustain or incur
or that may be asserted against Calamos 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 standard of care set
forth herein, or (ii) in reliance upon any written or oral
instruction provided to Calamos by any duly authorized officer of a
Party, such duly authorized officer to be included in a list of
authorized officers furnished to Calamos and as amended from time to
time in writing by resolution of a Party's Board of Trustees, except
for any and all claims, demands, losses, expenses, and liabilities
arising directly or indirectly out of or relating to Calamos'
refusal or failure to comply with the terms of this Agreement or
from bad faith, negligence or from willful misconduct on its part in
performance of its duties under this Agreement.
Calamos shall indemnify and hold each Party, its officers, trustees
and employees harmless from and against any and all claims, demands,
losses, expenses, and liabilities of any and every nature (including
reasonable attorneys' fees) that such Party may sustain or incur or
that may be asserted against such Party by any person arising
directly or indirectly out of any action taken or omitted to be
taken by Calamos as a result of Calamos' refusal or failure to
comply with the terms of this Agreement, its bad faith, negligence,
or willful misconduct.
In the event of a mechanical breakdown or failure of communication
or power supplies beyond its control, Calamos shall take all
reasonable steps to minimize service interruptions for any period
that such interruption continues beyond Calamos' control. Calamos
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 Calamos. Calamos 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 each Party shall be entitled to inspect Calamos'
premises and operating capabilities at any time during regular
business hours of Calamos, upon reasonable notice to Calamos.
Notwithstanding the above, Calamos 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 with counsel reasonably satisfactory to indemnitee
unless the legal rights and defenses
3
available to indemnitor and indemnitee present a conflict for joint
counsel. In the event that the indemnitor so elects to defend
indemnitee, it will so notify the indemnitee and thereupon the
indemnitor shall take over complete defense of 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 provided, however, if a conflict of interest arises after
the election to defend, indemnitee may select its own counsel and
shall be entitled to seek indemnification for expenses. 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;
provided however, that the indemnitor shall not settle a claim that
results in any admission of wrongdoing by indemnitee without
indemnitee's prior written consent.
5. PROPRIETARY AND CONFIDENTIAL INFORMATION
Calamos agrees on behalf of itself and its directors, officers, and
employees to treat confidentially and as proprietary information of each
Party all records and other information relative to such Party and prior,
present, or potential shareholders of such Party (and clients of said
shareholders) including all shareholder trading information, and not to
use such records and information for any purpose other than the
performance of its responsibilities and duties hereunder, except after
prior notification to and approval in writing by the Party, which approval
shall not be unreasonably withheld when requested to divulge such
information by duly constituted authorities, or when so requested by such
Party. Calamos acknowledges that it may come into possession of material
nonpublic information with respect to a Party and confirms that it has in
place effective procedures to prevent the use of such information in
violation of applicable xxxxxxx xxxxxxx laws.
Further, Calamos will adhere to the privacy policies adopted by each Party
pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as it may be modified
from time to time (the "Act"). Notwithstanding the foregoing, Calamos will
not share any nonpublic personal information concerning any Party's
shareholders with any third party unless specifically directed by such
Party or allowed under one of the exceptions noted under the Act.
6. TERM OF AGREEMENT; AMENDMENT
This Agreement shall become effective as of the date first written above
and will continue in effect until July 31, 2005, and from year-to-year
thereafter; this Agreement may be terminated by either party upon giving
60 days prior written notice to the other party or such shorter period as
is mutually agreed upon by the parties. This Agreement may be amended by
mutual written agreement of the parties.
7. RECORDS
Calamos 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 Parties, but not inconsistent with the
rules and regulations of appropriate government authorities,
4
in particular, Section 31 of the 1940 Act and the rules thereunder.
Calamos agrees that all such records prepared or maintained by Calamos
relating to the services to be performed by Calamos hereunder are the
property of each respective Party 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 such Party on and in
accordance with its request. Calamos agrees to provide any records
necessary for each Party to comply with its disclosure controls and
procedures adopted in accordance with the Xxxxxxxx-Xxxxx Act. Without
limiting the generality of the foregoing, the Calamos shall cooperate with
each Party and assist such Party as necessary by providing information to
enable the appropriate officers of such Party to execute any certification
required under that Act.
8. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the State
of Illinois, without regard to conflicts of law principles. To the extent
that the applicable laws of the State of Illinois, 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 SEC
thereunder.
9. DUTIES IN THE EVENT OF TERMINATION
In the event that, in connection with termination of this Agreement, a
successor to any of Calamos' duties or responsibilities hereunder is
designated by the Parties by written notice to Calamos, Calamos will
promptly, upon such termination and at the expense of each Party, transfer
to such successor all relevant books, records, correspondence and other
data established or maintained by Calamos under this Agreement in a form
reasonably acceptable to the Parties (if such form differs from the form
in which Calamos has maintained the same, each Party shall pay any
expenses associated with transferring the same to such form), and will
cooperate in the transfer of such duties and responsibilities, including
provision for assistance from Calamos' personnel in the establishment of
books, records and other data by such successor.
10. NO AGENCY RELATIONSHIP
Nothing herein contained shall be deemed to authorize or empower Calamos
to act as agent for the Trust party to this Agreement, nor to conduct
business in the name, or for the account, of the other party to this
Agreement.
11. DATA NECESSARY TO PERFORM SERVICES
The Parties or their agent shall furnish to Calamos the data necessary to
perform the services described herein at such times and in such form as
mutually agreed upon. If Calamos is also acting in another capacity for
such Party, nothing herein shall be deemed to relieve Calamos of any of
its obligations in such capacity.
12. ASSIGNMENT
5
This Agreement may not be assigned by either party without the prior
written consent of the other party.
13. 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 upon delivery 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 Calamos shall be sent to:
Calamos Asset Management, Inc.
Attention: General Counsel
0000 Xxxx Xxxxxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000-0000
and notice to the Parties shall be sent to:
[NAME OF PARTY]
Attention: Treasurer
0000 Xxxx Xxxxxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000-0000
14. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior agreements,
arrangements and understandings, whether written or oral.
6
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, ON BEHALF OF CALAMOS ASSET MANAGEMENT, INC.
ITSELF AND EACH SERIES THEREUNDER
By: __________________________________ By: _______________________________
Title: _______________________________ Title: ____________________________
CALAMOS ADVISORS TRUST, ON BEHALF OF
ITSELF AND EACH SERIES THEREUNDER
By: __________________________________
Title: _______________________________
CALAMOS CONVERTIBLE OPPORTUNITIES AND
INCOME FUND
By: __________________________________
Title: _______________________________
CALAMOS CONVERTIBLE AND HIGH INCOME FUND
By: __________________________________
Title: _______________________________
CALAMOS STRATEGIC TOTAL RETURN FUND
By: __________________________________
Title: _______________________________
CALAMOS GLOBAL TOTAL RETURN FUND
By: __________________________________
Title: _______________________________
7
8
EXHIBIT A
TO THE
FINANCIAL ACCOUNTING SERVICES AGREEMENT
FEE SCHEDULE
Each Party shall pay to Calamos for the services contemplated hereunder
the following annual rate based on the daily average net assets of all Parties:
0.0175% on the first $1 billion
0.0150% on the next $1 billion
0.0110% on average net assets in
excess of $2 billion
SCHEDULE I
Calamos Investment Trust, a Massachusetts business trust
Calamos Convertible Fund
Calamos Growth and Income Fund
Calamos Market Neutral Fund
Calamos Growth Fund
Calamos Global Growth and Income Fund
Calamos High Yield Fund
Calamos Value Fund
Calamos Blue Chip Fund
Calamos International Growth Fund
Calamos Advisors Trust, a Massachusetts business trust
Calamos Growth and Income Portfolio
Calamos Convertible Opportunities and Income Fund, a Delaware statutory trust
Calamos Convertible and High Income Fund, a Delaware statutory trust
Calamos Strategic Total Return Fund, a Delaware statutory trust
Calamos Global Total Return Fund, a Delaware statutory trust
